London, 05 February 2015
On 21 January 2015, the High Court of Justice of England and Wales held that the conduct of the Secretary of State for Communities and Local Government (the SSCLG) in relation to certain planning decisions amounted to indirect discrimination against Romany Gypsies and Irish Travellers. The SSCLG had a policy of personally determining appeals by travellers to develop sites on certain areas of protected land which led to significant delays in the hearing of those appeals. The Court concluded that the SSCLG had failed to have any regard to the equality implications of this practice, failing to meet his Public Sector Equality Duty (PSED). The significant delays also amounted to a violation of Article 6 of the European Convention on Human Rights (ECHR).
The case was brought by two Claimants, both Romany Gypsies, who had each applied for planning permission to live on land located in the Green Belt (an area of land where urbanisation is restricted, often in the interests of preserving natural environments). Both appealed the refusal of their applications and the appeals were “recovered” by the SSCLG for his personal consideration, pursuant to his policy of personally determining all planning appeals for traveller sites within the Green Belt. Under this policy, the SSCLG, from approximately September 2013 until September 2014, recovered all such appeals leading to significant delays in their determination – over 12 months in the case of each of the Claimants. There was no similar policy, and consequently no delay, in relation to habitations other than traveller sites within the Green Belt.
The Judge concluded that the practice of the SSCLG was “patently discriminatory”, contrary to section 19 of the Equality Act 2010. The SSCLG had failed to heed the warnings of his department about the possible disadvantage caused to Romany Gypsies and Irish Travellers by this practice and fell far short of demonstrating that he had considered whether his response was proportionate to his concerns over traveller sites. In fact, there was no evidence that the SSCLG had any regard to the need to eliminate discrimination and advance equality, as he was required to do by the PSED contained in section 149 of the Equality Act. Further, the significant delays caused to the Claimants were “remarkable” and amounted to a breach of their right to a fair trial under Article 6 of the ECHR.
The Equal Rights Trust welcomes the judgment and calls on the SSCLG to carry out an immediate and thorough equality assessment of planning policies and practices. The Executive Director of the Trust, Dimitrina Petrova, commented that:
“This decision reiterates the importance of the Public Sector Equality Duty and demonstrates that the Government cannot simply pay lip service to it, or even worse, ignore it. All levels of Government must give heightened attention to the advancement of equality of Romany Gypsies and Irish Travellers to combat the severe discrimination that they face in their everyday lives.”
To read the Trust’s summary of the decision, please see below.
To read the judgment of the Court, please click here
Moore and Coates v Secretary of State for Communities and Local Government
1. Reference Details:
Jurisdiction: High Court of Justice, Queen’s Bench Division, Planning Court, England and Wales
Date of Decision: 21 January 2015
2. Facts of the Case
The Claimants, both Romany Gypsies, separately sought planning permission for the use of sites of land located within the “Green Belt” (an area of land where urbanisation is restricted, often in the interests of preserving natural environments). Both Claimants wished to station caravans on the land for the purposes of accommodation, and both Claimants had been refused planning permission. One of the Claimants, Mrs Moore, had previously and successfully challenged her refusal of September 2010 in both the High Court and the Court of Appeal. Rather than await redetermination by the Secretary of State for Communities and Local Government (the SSCLG), the London Borough of Bromley then issued enforcement notices pursuant to the original planning decision, which were appealed by Mrs Moore. The other Claimant, Mrs Coates, had her application for temporary use of land refused by Dartford Borough Council in July 2012. She appealed in September 2012.
Under the Town and Country Planning Act 1990 the SSCLG has the power to “recover” appeals, meaning that they will be personally determined by him instead of, as is usual procedure, by an Inspector.
In view of the powers of the SSCLG, a number of written Ministerial Statements (WMS) had been issued, setting out his policy in relation to appeals that would be personally determined by him. The second WMS of 2 July 2013 noted that the SSCLG would, for a period of six months, consider appeals for recovery himself where they related to “traveller sites in the Green Belt”. This policy was reiterated in a WMS of 17 January 2014, given that the SSCLG was “concerned (…) as to whether sufficient weight [was] being given to the importance of Green Belt protection.” After permission was given for the Claimants’ judicial review hearing in August 2014, an instruction was issued to reduce the number of appeals recovered in relation to traveller sites to 75% of all such appeals. There was no policy to consider recovering all appeals in relation to any other type of residential development in the Green Belt.
The SSCLG recovered the Claimants’ appeals: Mrs Coates’ in January 2014 and Mrs Moore’s in February 2014. The reason given for recovery in both cases was that the appeals involved a traveller site in the Green Belt. Both Claimants sought judicial review of those decisions in June 2014. At the time of this judgment, both Claimants had been waiting over 12 months for a decision to be made.
- Sections 19, 29(6) and 149 of the Equality Act 2010.
- Sections 78, 79, 288, 289 and Schedule 6 of the Town and Country Planning Act 1990.
European Convention on Human Rights (ECHR)
- Articles 6 (right to a fair trial), 8 (right to respect for private and family life) and 14 (right to non-discrimination) ECHR.
4. Legal Arguments
Mrs Moore argued that the recovery of her appeal amounted to indirect discrimination contrary to sections 19 and 29(6) of the Equality Act 2010. Section 19 provides that a provision, criterion or practice, applied by one person (A) to another (B) discriminates against that other in relation to a relevant protected characteristic of B’s, if:
(2)(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
Both Claimants argued that there had been a breach of the Public Sector Equality Duty (PSED) contained in section 149 of the Equality Act. Section 149 establishes that a public authority or person exercising public functions must have due regard to the need to eliminate, inter alia, discrimination and to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not.
Both Claimants argued further that there had been a violation of their Article 6 right to a fair trial under the ECHR because of the delay in determining their appeals and because the recovery prevented their appeals being determined by an impartial tribunal. Both also contended that the SSCLG had breached their rights under Article 14 of the Convention to be free from discrimination, read together with Article 8, which protects their right to a private and family life. Furthermore, Mrs Moore argued that the SSCLG acted with irrationality and bias, and both Claimants made use of the Equality and Human Rights Commission’s (EHRC) argument that the policy adopted by the SSCLG was unlawful as it was undisclosed and fundamentally inconsistent with the SSCLG’s stated position.
Intervener’s Arguments (Equality and Human Rights Commission)
The EHRC intervening, contended that the practice of the SSCLG disadvantaged ethnic Gypsies and Travellers because of the significant delay in determining a recovered appeal. This practice represented a “stark case” of indirect discrimination and was not a proportionate means of achieving a legitimate aim. The SSCLG (and his Ministers) also acted in breach of their PSED under section 149 of the Equality Act by failing to consider the effect of this practice. EHRC submitted further that the SSCLG had acted unlawfully because the practice was contrary to his declared policy on the recovery of appeals.
The SSCLG contended that, as the head of the planning system, he was ideally placed to assess planning appeals. He asserted that, if he considered relevant policies were not being applied correctly, he possessed a wide discretion to recover as many or as few as he deemed necessary subject to the Equality Act and common law duties. He should be allowed a “large measure of discretion” in the recovery of appeals, the criteria for which covered many different situations and were not a policy as such. He should be allowed a wide margin of appreciation in relation to his determining to change the criteria for recovery of appeals in the 2013 WMS. The development of this WMS occurred after a long process of consideration and did not apply any blanket policy of recovery of appeals (this policy was only adopted with the 2014 WMS).
The SSCLG contended that the only disadvantage caused was that the determination of appeals was delayed, and in any event, such delays were not unreasonable, and did not breach Article 6 of the ECHR. The SSCLG further argued that there was no indirect discrimination because ethnic Gypsies and Travellers were treated in the same way as non-ethnic gypsies and travellers. In any case, the practice was a proportionate response to a legitimate aim. There was no breach of the PSED because “due regard” within the meaning of section 149 was had and there was no need for a formal assessment to be undertaken. Finally, there was no evidence of bias, abuse of power or irrationality.
The Judge, Mr Justice Gilbart, found the practice of recovering all appeals was indirect discrimination contrary to section 19 of the Equality Act and that the SSCLG had breached his PSED as set out in section 149 of the Equality Act. He also found a violation of Article 6 of the ECHR on the basis of the unreasonable delay that had occurred in the Claimants’ appeals.
The Judge did not consider it necessary to consider fully the arguments as they related to Articles 8 and 14 of the ECHR and dismissed those arguments relating to administrative questions of bias, irrationality and abuse of power.
Findings of Fact
The Judge found that from 1 July 2013, all appeals relating to traveller sites were being considered for recovery. By September 2013 at the latest, the SSCLG was recovering all appeals related to proposals for traveller sites. It was the intention of the relevant Ministers by January 2014 at the latest, that all such appeals be recovered. This approach continued until September 2014, when it was reconsidered in light of these proceedings.
It was also clear that the effect of increasing the number of appeals recovered significantly delayed the time taken to determine these appeals, and this was well known to the relevant Ministers. It was common ground that appeals considered by inspectors took a maximum of eight weeks to complete, whereas appeals recovered by the SSCLG took substantially longer; of the 53 cases recovered since 1 July 2013, only 1 had been determined by January 2014. Similarly, at May 2014, of the 84 cases recovered from 1 July 2013, only 14 had been determined.
It was not disputed that Romany Gypsies and Irish Travellers were each a distinct racial group by virtue of section 9(4) of the Equality Act and so entitled to the protection provided by sections 19 and 149 of the Act.
Interpretation of sections 19(1) and (2)(a) and (b)
It was clear that the policy of recovery was not directed at ethnic Gypsies and Travellers but rather at travellers, whatever their race or origin. However, the racial groups in question were, as was obvious common sense, particularly affected by it. So it was necessary to consider whether there was a violation of the obligation not to discriminate indirectly under section 19 of the Equality Act. The Judge first considered the interpretation of sections 19(1) and (2)(a) and (b) of the Equality Act. He gave significant attention to the appropriate comparator group for the purpose of determining indirect discrimination. Initially, the EHRC submitted that, in order to assess whether there was indirect discrimination, ethnic Gypsies should be compared to two different sets of persons in sub-sections 19(2)(a) and (b). The Judge concluded that the difficulty of this two-step approach arose only because the EHRC’s initial choice of comparator group in relation to (2)(a), all travellers, was too narrow to show disadvantage being faced by ethnic Gypsies and the intention was not that the Equality Act make it harder than it had been before to establish indirect discrimination.
The Judge noted that he had raised the issue of the comparator group for further discussion during the trial with all counsel. During this discussion, counsel for Mrs Coates had submitted, and the EHRC had accepted, that a larger group should be taken, such as persons seeking planning permission for habitation on the Green Belt. The Judge concluded that taking this larger group resolved the difficulty, which was reassuring as “one should avoid placing technical obstacles in the way of establishing that indirect discrimination has occurred.”
The Judge found that the group proposed by the SSCLG for comparison, namely all those whose appeals fell for recovery under a 2008 WMS, which included a wide range of major and other developments in the Green Belt, was too large. In reality, what had happened was that there was a “marked and obvious difference” between those who sought to live in the Green Belt and seek permission to build a house and those who sought to live there as travellers, including ethnic Gypsies or Travellers. Reiterating that section 19 requires the effect but not the purpose of the provision, criterion or practice to be discriminatory, the Judge concluded that “[a] policy which imposes greater delays on a racial group’s planning appeals than it does on others who wish to set up a habitation in the Green Belt is patently discriminatory” subject to whether that policy was a proportionate means to achieving a legitimate aim. This conclusion was not affected by the fact that some non-ethnic gypsies and travellers were also impacted by the 2013 and 2014 WMS; their presence in the same group did not mean the practice was not indirectly discriminatory.
The argument that the words “provisions, criterion or practice” in section 19(1) should be read discretely was rejected. What mattered was not how the acts were classified, but whether the effect of the acts was to discriminate. To consider one aspect a criterion and one a practice was “a matter of labelling and not of substance.”
Sections 19(2)(c) and (d)
It was not disputed that the delay in determining the appeals of Mrs Moore, Mrs Coates and other ethnic Gypsies and Travellers constituted a disadvantage for the purposes of section 19(2)(c). However, there was substantial disagreement over whether the recovery of all appeals, as was the practice from the latter part of 2013 and was the policy in the 2014 WMS, constituted a proportionate means of achieving a legitimate aim.
The Judge accepted that the SSCLG was entitled to decide that a “clearer steer” was required on appeals for planning permission. It was a legitimate aim for the SSCLG to provide guidance, through the determination of appeals, on the consideration of what amounted to very special circumstances in relation to planning appeals in the Green Belt. However, the reason given for the SSCLG’s recovery of such appeals was merely that they related to a traveller’s site in the Green Belt. As such, proportionality was the real issue in question. The Judge referred to the test in the House of Lords case of De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, which requires (i) that the Defendant demonstrates that the objective be sufficiently important to justify limiting a fundamental right; (ii) that the measure is rationally connected to the objective; and (iii) that the means chosen are no more than is necessary to accomplish the objective. Proportionality must be considered not only generally but in the specific context of the objectives in section 149 and the guidance provided by the Court of Appeal. Therefore, if there is a choice between a method which discriminates, and one which does not; and between a method which advances the objectives in section 149 and one which does not, the policy maker must advance a good, proportionate reason for choosing the former pair and not the latter.
There were real difficulties in meeting limbs (i) and (iii) of the test in De Freitas. In relation to (i), at least two fundamental rights were in play; the right under Article 6 ECHR to have a determination of appeal without unreasonable delay, and the right of ethnic Gypsies and Travellers not to be treated less favourably than others. In the case of (iii), there were a number of other routes by which the same end could be achieved, for instance (as had been envisaged by the 2013 WMS) recovering a representative group of appeals for determination rather than recovering all cases. The SSCLG and his Minister fell far short of demonstrating that the recovery of all appeals was proportionate given the repeated advice from officials in relation to the delays caused and the warnings that it could disadvantage ethnic Gypsies and Travellers. There was no evidence showing why, despite these repeated warnings, the Minister or SSCLG thought the approach they had taken was proportionate and had not considered alternatives to meet the desired objectives.
Although the practice, as stated in the 2013 WMS, could be taken as prima facie proportionate, its application, whereby all appeals were recovered, was disproportionate, and therefore the practice contravened section 19. Similarly, although the 2014 WMS was not written in a way so that all appeals would be recovered, it was demonstrated that this was what was intended and evident that this is what happened in practice. It therefore also contravened section 19. Further, the subsequent change in practice in September 2014 to recovering 75% of appeals was arbitrarily decided without any analysis of any kind, a further contravention of section 19.
Section 149 – Public Sector Equality Duty
The Judge noted at the outset that his role was not to reach a view on the decision he would make were he applying section 149. The court’s role was to decide if due regard had been had by the decision maker. If the Judge found that due regard was had, it remained for the decision maker to decide what weight to give to the equality impacts of the decision. The Judge concluded that the fact that an earlier equality determination in 2012 had highlighted the impact on Gypsies and Travellers of planning decisions, meant that the SSCLG should have recognised that care needed to be taken so that their situation did not become worse compared to other appellants. The earlier equality assessment did not negate the need to carry out further assessments at a later stage.
There was no evidence that any consideration had been given to the need to have due regard to the impact of the practice of recovery of appeals. On the contrary, on the evidence submitted by the SSCLG himself, the fact was that he had no regard at all. Even assuming that no formal equality assessment needed to be made, as was argued, it did not follow that no consideration had to be given. The PSED requires actual consideration and “evidence of a structured attempt to focus upon the details of equality issues”. Even if the SSCLG and the Ministers had considered the issues, the Judge would still have concluded that they had not had due regard, because, as he had already concluded in relation to section 19, the steps taken to achieve the legitimate aim of clarity in planning applications were not proportionate.
Articles 6, 8 and 14 of the European Convention on Human Rights
Following a long line of authority, the Judge did not accept that the Claimants had been deprived of their right to an independent and impartial hearing under Article 6 of the ECHR. There was no reason to depart from this line of authority, as there was no evidence that the SSCLG was predisposed to dismiss any particular appeals. However, the Judge accepted that the delay was a breach of Article 6, considering it “remarkable” that cases requiring a modest amount of evidence and taking two days at most typically, could then require consideration for over six months, let alone, as in the case of Mrs Coates, 10 months. It was the decision to recover the appeals that lead to the delays rather than any issues and complexities with the cases themselves. No delay had been occasioned to appeals in relation to “conventional” housing, the delays only impacted on traveller housing. The appeals involved where the Claimants lived or wished to live and the delays caused were not shown to be a proportionate response to providing guidance on policy.
Article 8 did not add anything to the discussion other than confirming that the adverse effects on the home life of the Claimants gave further reasons for the timely hearing of appeals. The Judge chose not to consider the arguments concerning Article 14, given that he had found a breach of section 19 of the Equality Act.
Administrative grounds: allegations of bias, abuse of power and irrationality
The Judge did not consider that there was any evidence to justify the claim of bias, noting that the practice of the SSCLG dismissing appeals that Inspectors would have allowed, came nowhere near bias and that, indeed, one of the Claimant’s appeals was initially dismissed by an Inspector. The Claimants argued that it had been irrational and an abuse of power for the SSCLG and his Ministers to recover all such cases given that it was unnecessary to do so, and that Inspectors were experienced in such cases. The Judge decided that the SSCLG was entitled to act as such and these arguments were untenable. Finally, the argument was made by the EHRC that the SSCLG continued to make decisions, not on the basis of declared policy, but on an undisclosed basis. While acknowledging that undisclosed policy was not ideal, the Judge declared that the SSCLG was lawfully entitled to pursue it.