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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Moore & Anor v Secretary of State for Communities and Local Government & Ors  EWHC 44 (Admin) (21 January 2015)
Cite as:  EWHC 44 (Admin),  PTSR D14
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CHARMAINE MOORE and SARAH COATES
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
LONDON BOROUGH OF BROMLEY and DARTFORD BOROUGH COUNCIL
EQUALITY AND HUMAN RIGHTS COMMISSION
(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
for the Claimant Charmaine Moore
Stephen Cottle (instructed by Community Law Partnership Ltd, Birmingham)
for the Claimant Sarah Coates
Christopher Buttler (instructed by Rosemary Lloyd, Equality and Human Rights Commission) for the Intervener
Rupert Warren QC and David Blundell (instructed by Treasury Solicitor)
for the Defendant Secretary of State
The interested parties were not represented and did not appear
Hearing dates: 4th-5th December 2014
Crown Copyright ©
MR JUSTICE GILBART:
|Determination of planning appeals- the legal and policy framework||5-12|
|Short history of WMS setting out recovery criteria
WMS 30th June 2008
WMS 1 1st July 2013
WMS 2 17th January 2014
Green Belt policy
Methods of giving policy guidance
|SSCLG's approaches to recovery of appeals in 2013-4, including publication of WMS 1 and WMS 2||31-42|
|The Claimants and their planning appeals||43-57|
|Position of Romany Gypsies and Irish Travellers, and effects of the changes in recovery practice||58-78|
|Overview of the cases for the Claimants, the EHRC and the Defendant SSCLG||79-84|
|Equality Act 2010
Role of EHRC
Direct and indirect discrimination
Interpretation of section 19 (1) and (2)(a) and (b)
Arguments relating to claim of indirect discrimination under section 19
Arguments relating to Public Sector Equality Duty in section 149
Court's discussion and conclusions on section 19 arguments
Court's discussion and conclusions on section 149 arguments
|Articles 6 and 8 of ECHR: arguments, discussion and conclusions||139-151|
|Allegations of bias: arguments discussions and conclusions||152-154|
|Allegations of abuse of power and irrationality||155-158|
|Allegations that Defendant SSCLG acted in accordance with an undeclared policy, and contrary to his declared policy:
discussion and conclusions
|Conclusions on the merits||171-174|
|Orders and the exercise of the Court's discretion||176-187|
2 Determination of planning appeals - the legal and policy framework
(1) On an appeal under section 78 the Secretary of State may
(a) allow or dismiss the appeal, or
(b) reverse or vary any part of the decision of the local planning authority (whether the appeal relates to that part of it or not),
and may deal with the application as if it had been made to him in the first instance.
(2) Before determining an appeal under section 78 the Secretary of State shall, if either the appellant or the local planning authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.
(7) Schedule 6 applies to appeals under section 78, including appeals under that section as applied by or under any other provision of this Act.
"by regulations prescribe classes of appeals under sections 78 which are to be determined by a person appointed by the Secretary of State for the purpose instead of by the Secretary of State.
(2) Those classes of appeals shall be so determined except in such classes of case
(a) as may for the time being be prescribed, or
(b) as may be specified in directions given by the Secretary of State."
2(1) An appointed person shall have the same powers and duties
(a) in relation to an appeal under section 78, as the Secretary of State has under subsections (1), (4) and (6A) of section 79;
(2) Sections 79(2) ..shall not apply to an appeal which falls to be determined by an appointed person, but before it is determined the Secretary of State shall ask the appellant and the local planning authority whether they wish to appear before and be heard by the appointed person.
(3) If both the parties express a wish not to appear and be heard the appeal may be determined without their being heard.
(4) If either of the parties expresses a wish to appear and be heard, the appointed person shall give them both an opportunity of doing so.
(6) Where an appeal has been determined by an appointed person, his decision shall be treated as that of the Secretary of State.
(7) Except as provided by Part XII, the validity of that decision shall not be questioned in any proceedings whatsoever.
(8) It shall not be a ground of application to the High Court under section 288, or of appeal to the High Court under section. . ., that an appeal ought to have been determined by the Secretary of State and not by an appointed person, unless the appellant or the local planning authority challenge the appointed person's power to determine the appeal before his decision on the appeal is given.
(9) Where in any enactment (including this Act) there is a reference to the Secretary of State in a context relating or capable of relating to an appeal to which this Schedule applies or to anything done or authorised or required to be done by, to or before the Secretary of State on or in connection with any such appeal, then so far as the context permits it shall be construed, in relation to an appeal determined or falling to be determined by an appointed person, as a reference to him."
"3(1) The Secretary of State may, if he thinks fit, direct that an appeal which would otherwise fall to be determined by an appointed person shall instead be determined by the Secretary of State.
(2) Such a direction shall state the reasons for which it is given and shall be served on the person, if any, so appointed, the appellant, the local planning authority and any person who has made representations relating to the subject matter of the appeal which the authority are required to take into account under any provision of a development order made by virtue of section 71(2) (a).
(3) Where in consequence of such a direction an appeal falls to be determined by the Secretary of State, the provisions of this Act which are relevant to the appeal shall, subject to the following provisions of this paragraph, apply to the appeal as if this Schedule had never applied to it.
(4) The Secretary of State shall give the appellant, the local planning authority and any person who has made any such representations as mentioned in sub-paragraph (2) an opportunity of appearing before and being heard by a person appointed by the Secretary of State for that purpose if
(a) the reasons for the direction raise matters with respect to which any of those persons have not made representations; or
(b) in the case of the appellant or the local planning authority, either of them was not asked in pursuance of paragraph 2(2) whether they wished to appear before and be heard by the appointed person, or expressed no wish in answer to that question, or expressed a wish to appear and be heard, but was not given an opportunity of doing so.
(5)- (5A) ..
(6) Except as provided by sub-paragraph (4) .., the Secretary of State need not give any person an opportunity of appearing before and being heard by a person appointed for the purpose, or of making fresh representations or making or withdrawing any representations already made.
(7) In determining the appeal the Secretary of State may take into account any report made to him by any person previously appointed to determine it."
"48. The adoption of planning policy and its application to particular facts is quite different from the judicial function. It is for elected Members of Parliament and ministers to decide what are the objectives of planning policy, objectives which may be of national, environmental, social or political significance and for these objectives to be set out in legislation, primary and secondary, in ministerial directions and in planning policy guidelines. Local authorities, inspectors and the Secretary of State are all required to have regard to policy in taking particular planning decisions and it is easy to overstate the difference between the application of a policy in decisions taken by the Secretary of State and his inspector. As to the making of policy, Wade & Forsyth Administrative Law, 8th ed (2000) p 464:
"It is self-evident that ministerial or departmental policy cannot be regarded as disqualifying bias. One of the commonest administrative mechanisms is to give a minister power to make or confirm an order after hearing objections to it. The procedure for the hearing of objections is subject to the rules of natural justice in so far as they require a fair hearing and fair procedure generally. But the minister's decision cannot be impugned on the ground that he has advocated the scheme or that he is known to support it as a matter of policy. The whole object of putting the power into his hands is that he may exercise it according to government policy."
As Mr Gregory Jones put it pithily in argument it is not right to say that a policy maker cannot be a decision maker or that the final decision maker cannot be a democratically elected person or body."
"139. The general context in which this challenge is raised is that of planning and development. The functions of the Secretary of State in the context of planning may conveniently be referred to as "administrative", in the sense that they are dealing with policy and expediency rather than with the regulation of rights. We are concerned with an administrative process and an administrative decision. Planning is a matter of the formation and application of policy. The policy is not matter for the courts but for the Executive. Where decisions are required in the planning process they are not made by judges, but by members of the administration. Members of the administration may be required in some of their functions to act in a judicial manner in that they may have to observe procedural rules and the overarching principles of fairness. But while they may on some occasions be required to act like judges, they are not judges and their determinations on matters affecting civil rights and obligations are not to be seen as judicial decisions. Even although there may be stages in the procedure leading up to the decision where what used to be described as a quasi-judicial character is superadded to the administrative task, the eventual decision is an administrative one. As was long ago observed by Lord Greene MR in B Johnson & Co (Builders) Ltd Minister of Health  2 All ER 395, 399:
"That decision must be an administrative decision, because it is not to be based purely on the view that he forms of the objections, vis-ΰ-vis the desires of the local authority, but is to be guided by his view as to the policy which in the circumstances he ought to pursue."
Moreover the decision requires to take into account not just the facts of the case but very much wider issues of public interest, national priorities. Thus the function of the Secretary of State as a decision-maker in planning matters is not in a proper sense a judicial function, although certain qualities of a judicial kind are required of him.
140. Planning and the development of land are matters which concern the community as a whole, not only the locality where the particular case arises. They involve wider social and economic interests, considerations which are properly to be subject to a central supervision. By means of a central authority some degree of coherence and consistency in the development of land can be secured. National planning guidance can be prepared and promulgated and that guidance will influence the local development plans and policies which the planning authorities will use in resolving their own local problems. As is explained in paragraph I of the Government's publication Planning Policy Guidance Notes, the need to take account of economic, environmental, social and other factors requires a framework which provides consistent, predictable and prompt decision-making. At the heart of that system are development plans. The guidance sets out the objectives and policies comprised in the framework within which the local authorities are required to draw up their development plans and in accordance with which their planning decisions should be made. One element which lies behind the framework is the policy of securing what is termed sustainable development, an objective which is essentially a matter of governmental strategy.
141. Once it is recognised that there should be a national planning policy under a central supervision, it is consistent with democratic principle that the responsibility for that work should lie on the shoulders of a minister answerable to Parliament. The whole scheme of the planning legislation involves an allocation of various functions respectively between local authorities and the Secretary of State. In placing some functions upon the Secretary of State it is of course recognised that he will not personally attend to every case himself. The responsibility is given to his department and the power rests in the department with the Secretary of State as its head and responsible for the carrying out of its work. Within his department a minister may well take advice on law and policy (Bushell v Secretary of State for the Environment  AC 75) and the Secretary of State is entitled to seek elucidation on matters raised by the case which he has to decide, provided always that he observes the basic rules of fairness. In particular he should in fairness give the parties an opportunity to comment if after a public inquiry some significant factual material of which the parties might not be aware comes to his notice through departmental inquiry.
142. There may be various agencies which will advise him on particular aspects of planning, as for example an agency skilled in the conservation of historic buildings. But it is a false analysis to claim that there is a lis between a developer and such an agency which will be heard and determined by the minister. As Lord Greene MR observed in Johnson, at p 399, in relation to objections to a compulsory purchase order proposed by a local authority:
"it is not a lis inter partes, and for the simple reason that the local authority and the objectors are not parties to anything that resembles litigation. . . . on the substantive matter, viz whether the order should be confirmed or not, there is a third party who is not present, viz, the public, and it is the function of the minister to consider the rights and interests of the public."
The minister is not bound to follow the view of any agency, nor is he bound to follow the desires or interests of any other Government department. He is not bound to apply a particular policy if the circumstances seem to him inappropriate for its application. He is not independent. Indeed it is not suggested that he is. But that is not to say that in making the decisions on the matters in issue in the present appeals he is both judge and party. It does not seem to me correct to say of the Secretary of State that he is judex in sua causa, at least in any strict sense of that expression. He is, as I have already sought to explain, not strictly a judge. Moreover the cause is not in any precise sense his own. No one is suggesting that he, or the officials in his department, have any personal financial or proprietary interest in these cases. The concern of the Secretary of State and his department is to manage planning and development in accordance with the broad lines of policy which have been prepared in the national interest."
a. WMS 30th June 2008
b. WMS 1 1st July 2013
c. WMS 2 17th January 2014
"The majority of planning appeals in England are decided by inspectors, but a small percentage is decided by the Secretary of State for Communities and Local Government, usually because the development is large and/or controversial. Around 27,000 appeals are made each year: in 2007, 110 appeals were determined by the Secretary of State.
This statement sets out the Secretary of State's policy on recovering planning appeals. It replaces the previous policy on which appeals are recovered for the Secretary of State's determination (which was set out in a House of Commons Hansard written answer for 24 July 2006). These changes are being made following the review of the 2006 criteria promised in the White Paper, "Planning for a Sustainable Future". They introduce two new criteria, one of which relates to climate change and energy and the others to World Heritage Sites.
In future the Secretary of State will consider recovery of appeals involving:
- proposals for development of major importance having more than
- proposals giving rise to substantial regional or national controversy;
- proposals which raise important or novel issues of development
control and/or legal difficulties;
- proposals against which another Government Department has raised
major objections or has a major interest;
- proposals of major significance for the delivery of the Government's
climate change programme and energy policies;
- any proposal for residential development of over 150 units or on
sites of over five hectares, which would significantly impact on the Government's objective to secure a better balance between housing demand and supply and create high quality, sustainable, mixed and inclusive communities;
- proposals which involve any main town centre use or uses (as set
out in paragraph 1.8 of PPS6) where that use or uses comprise(s) over 9,000m (2) gross floor space (either as a single proposal or as part of or in combination with other current proposals), and which are proposed on a site in an edge-of-centre or out-of-centre location (as described in Table 2 of PPS6) that is not in accordance with an up-to-date development plan document prepared in accordance with the policy in PPS6;
- proposals for significant development in the green belt;
- major proposals involving the winning and working of minerals; and
- proposals which would have an adverse impact on the outstanding
universal value, integrity, authenticity and significance of a World Heritage Site.
There may on occasion be other cases which merit recovery because of the particular circumstances."
the SSCLG was
"revising the recovery criteria issued on 30 June 2008 and will consider for recovery appeals involving traveller sites in the Green Belt."
(I shall set out below more of what it set out, as I shall something of its history).
- Green Belt policy
- Methods of giving policy guidance
i) The National Planning Policy Framework ("NPPF"): this was published by the SSCLG on 27th March 2012. It is stated at paragraph 1 that
"The National Planning Policy Framework sets out the Government's planning policies for England and how these are expected to be applied."
It contains policies relating to most aspects of development control, including Green Belt policy and Travellers Pitches.
ii) The "Planning Policy For Traveller Sites" ("PPTS") which was published by the SSCLG on the same date. Its first paragraph states
"This document sets out the Government's planning policy for traveller sites. It should be read in conjunction with the National Planning Policy Framework."
Substantive policy (1) Green Belt (2) Travellers Pitches
"The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence."
"87 As with previous Green Belt policy, inappropriate development is, by
definition, harmful to the Green Belt and should not be approved except in
very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
Policy E: Traveller sites in Green Belt
14 Inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development.
15 Green Belt boundaries should be altered only in exceptional circumstances. If a local planning authority wishes to make an exceptional limited alteration to the defined Green Belt boundary (which might be to accommodate a site inset within the Green Belt) to meet a specific, identified need for a traveller site, it should do so only through the plan-making process and not in response to a planning application. If land is removed from the Green Belt in this way, it should be specifically allocated in the development plan as a traveller site only."
"Policy H: Determining planning applications for traveller sites
20. Planning law requires that applications for planning permission must be determined in accordance with the development plan, unless material considerations indicate otherwise.
21. Applications should be assessed and determined in accordance with the presumption in favour of sustainable development and the application of specific policies in the National Planning Policy Framework and this planning policy for traveller sites.
22. Local planning authorities should consider the following issues amongst other relevant matters when considering planning applications for traveller sites:
a) the existing level of local provision and need for sites
b) the availability (or lack) of alternative accommodation for the applicants
c) other personal circumstances of the applicant
d) that the locally specific criteria used to guide the allocation of sites in plans or which form the policy where there is no identified need for pitches/plots should be used to assess applications that may come forward on unallocated sites
e) that they should determine applications for sites from any travellers and not just those with local connections
23. Local planning authorities should strictly limit new traveller site development in open countryside that is away from existing settlements or outside areas allocated in the development plan. Local planning authorities should ensure that sites in rural areas respect the scale of, and do not dominate the nearest settled community, and avoid placing an undue pressure on the local infrastructure.
24. When considering applications, local planning authorities should attach weight to the following matters:
a) effective use of previously developed (brownfield), untidy or derelict land
b) sites being well planned or soft landscaped in such a way as to positively enhance the environment and increase its openness
c) promoting opportunities for healthy lifestyles, such as ensuring adequate landscaping and play areas for children
d) not enclosing a site with so much hard landscaping, high walls or fences, that the impression may be given that the site and its occupants are deliberately isolated from the rest of the community
25. Subject to the implementation arrangements at paragraph 28, if a local planning authority cannot demonstrate an upto-date five-year supply of deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission.
26. Local planning authorities should consider how they could overcome planning objections to particular proposals using planning conditions or planning obligations including:
a) limiting which parts of a site may be used for any business operations, in order to minimise the visual impact and limit the effect of noise
b) specifying the number of days the site can be occupied by more than the allowed number of caravans (which permits visitors and allows attendance at family or community events)
c) limiting the maximum number of days for which caravans might be permitted to stay on a transit site."
Under paragraph 28 in the Implementation section, it is stated that
"The policy set out in paragraph 25 only applies to applications for temporary planning permission for traveller sites made 12 months after this policy comes into force."
"That, as (Counsel) correctly submitted, amounted to this .inappropriate developments were to be permitted as a matter of policy if (and only if) a presumption against them was rebutted. A presumption is of its nature capable of rebuttal and is not a proscription."
10 "The "other considerations" relied on cumulatively by the claimant as clearly outweighing the harm were the need for sites for gypsies and travellers in the area; the individual needs of the claimant and her family; the lack of suitable alternative sites that were both available and affordable; the likely outcome of refusing planning permission, including human rights considerations; and personal considerations including health and education. The inspector's detailed findings in respect of those matters are again set out in Cox J's judgment. In short, the inspector found that there was some immediate need for sites in the borough but that the figures did not weigh heavily in favour of the claimant; and that the circumstances surrounding the claimant's departure from her Housing Association property were such that the current lack of suitable accommodation carried only limited weight. He referred to the fact that the claimant suffered from "joint laxity" for which she was on strong painkillers and anti-inflammatories; she was on anti-depressants for depression and anxiety; her doctor had written that moving to a caravan in a field would have a positive effect on her mental health and her joints; and moving to a roadside existence would be harmful to her health. He said that her health needs carried some weight. He referred to the fact that two of the children attended school (and one of them saw a specialist dyslexia teacher), whilst the third received home education. He said that a settled education was a benefit and carried some limited weight."
12. "That was the reasoning that led the inspector to refuse permanent planning permission. He went on immediately to consider the question of temporary planning permission, as follows:
"34. Paragraphs 45 and 46 of ODPM Circular 01/2006 set out the transitional arrangements for considering planning applications in circumstances where sites have not yet been secured through the development plan process. It identifies how this relates back to paragraphs 108-113 of Circular 11/95 The Use of Conditions in Planning Permissions. In this case there is a limited level of unmet need for sites. There are no alternative suitable sites that are available and affordable. The plan-led process may result in sites becoming available in 2014. In these circumstances advice in the Circular is that substantial weight should be given to the unmet need in considering whether a temporary permission is justified.
35. There is therefore a change in the balance in that substantial weight must now be attached to the unmet need. In addition, there would be reduced harm to the Green Belt due to that harm being for a limited period. However, in view of the amount of harm and all the other circumstances identified above, I do not consider that the balance would be tipped sufficiently for the material considerations to clearly outweigh the harm. In such circumstances temporary planning permission would not be appropriate."
"73. Further, in this case, the vulnerable position of Gypsies generally and the need for special consideration to be given to their needs, to which Carnwath LJ referred in Wychavon [Wychavon District Council v Secretary of State for Communities and Local Government  EWCA Civ 692,  PTSR 19], had a particular focus when considering temporary permission for this Claimant. In addition to her status as a single Gypsy mother with three young children, she was a person with compelling health needs, for whom the consequences of refusal of a temporary planning permission were potentially extremely serious.
74. In circumstances where no alternative sites were available, or likely to become available in the foreseeable future; where injunction proceedings for immediate eviction had already been started; where the inspector found that the Claimant and her children would probably have to leave the site if permission were refused; where there was a recognised risk that the Claimant and her children, once evicted, would have to resort to roadside existence, which would harm the Claimant's health and cause serious harm to the quality of life of the Claimant and her children; and where there was no evidence that the Claimant, once evicted, would in fact be offered a pitch on one of the Council-run sites or indeed anywhere else in the area, the decision that the other material considerations in this case were not sufficient to clearly outweigh the identified harm and to justify the grant of temporary permission was, in my judgment, irrational.
75. The inspector's tentative findings, that there was no certainty that the Claimant would resort to a roadside existence, and that the Council may not evict the Claimant before a pitch becomes available, do not save the decision to refuse a temporary permission, when considered in the context of the other findings referred to above. The probability that the Claimant and her children would have to leave the site; the lack of any finding as to where they would go once evicted; and, in particular, the medical opinion as to the adverse effects of roadside existence upon this Claimant's health, the adverse effects upon the continuity of her children's education and upon the quality of life for them all cannot in my judgment be said to constitute other than very special circumstances."
24 "If the family was likely to face a roadside existence in the event of refusal of temporary permission, it would involve a far more serious interference with their article 8 rights, especially through the impact on health and education, than if they were likely to obtain alternative accommodation. Thus the issue went to the core of the article 8 analysis. Moreover, the "other material considerations" advanced by the claimant included "the likely outcome of refusing planning permission including human rights considerations" (para 17 of the inspector's decision), which underlined the need for a finding on likelihood.
25 The question whether the family was likely to resort to a roadside existence was also important in relation to the "harm" side of the balance. On the inspector's own finding, at para 31 of his decision, roadside camping would be likely to be equally harmful to the Green Belt and potentially more harmful to the countryside. Of course, the grant of temporary permission would still result in the harm identified by the inspector, and it may not be strictly accurate to describe that harm as being cancelled out or neutralised by the harm that would result from the refusal of temporary permission, but the overall balance would necessarily be affected if the harm resulting from the refusal of temporary permission would be equal to or greater than the harm resulting from the grant of such permission. The judge did not deal with the point in quite this way but it goes to support the conclusion she reached.
26 There was ample material before the inspector on which to make a finding as to the likelihood of roadside camping if temporary permission was refused. The point does not fall for decision, but I doubt whether on that material he could reasonably have reached any conclusion other than that roadside camping was a likelihood. The council's injunction application, although on hold pending the appeal to the inspector, was for the claimant's immediate eviction; and as the judge said at para 71(e) and (f) of her judgment, the council had adduced no evidence that there were any alternative sites or as to the circumstances in which pitches had been offered previously to those forced to move. It is difficult to see what realistic alternative the family had to a roadside existence.
27 In my judgment, it is far from inevitable that the inspector would have reached the same conclusion if he had made a finding on the likelihood of roadside camping and had followed through its implications in the respects considered above."
"The lower threshold for recovering traveller appeals in the Green Belt reflects the fact that traveller proposals are often more controversial and more complex than other types of development (e.g. in terms of their relationship to existing settlements or integration with infrastructure."
"became concerned as to whether the aims and objectives of PPTS were being correctly understood and implemented by decision-makers where development in the Green Belt was concerned."
On 2nd July 2013 Mr Brandon Lewis, the Local Government Minister, made a written statement to Parliament (WMS 1). It included the following
Protecting the green belt
Our policy document, Planning policy for traveller sites, was issued in March 2012. It makes 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.
As set out in that document and in March 2012's National Planning Policy Framework, inappropriate development in the green belt should not be approved except in very special circumstances. Having considered recent planning decisions by councils and the Planning Inspectorate, it has become apparent that, in some cases, the green belt is not always being given the sufficient protection that was the explicit policy intent of ministers.
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 for 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.
The Secretary of State wishes to give particular scrutiny to traveller site appeals in the green belt, so that he can consider the extent to which Planning policy for traveller sites is meeting this government's clear policy intentions. To this end he is hereby revising the appeals recovery criteria issued on 30 June 2008 and will consider for recovery appeals involving traveller sites in the green belt.
For the avoidance of doubt, this does not mean that all such appeals will be recovered, but that the Secretary of State will likely recover a number of appeals in order to test the relevant policies at national level. The Secretary of State will apply this criteria" (sic) "for a period of 6 months, after which it will be reviewed.
Revoking 'equality and diversity in planning'
Under the last administration's flawed rules, a sense of unfairness was embedded in the planning system. Unauthorised developments created tensions between travellers and the settled population, whilst some community groups seemingly were given favoured treatment. That approach has harmed community cohesion. We want to redress the balance and put fairness back into local communities.
I appreciate that there is ongoing concern, as reflected by some honourable members recently proposing a Private Member's Bill on this issue.
I can announce today that the government is cancelling the last administration's practice guidance Diversity and equality in planning which was issued by the Office of the Deputy Prime Minister in 2005.
This guidance is outdated, excessive in length (at 186 pages), and sends unhelpful signals about the planning process. For example, the document:
- fails to strike the correct balance between the spatial impact of a planning proposal and the background of the applicant in considering a planning application
- encourages monitoring of local residents' private lives such as through intrusive lifestyle/diversity surveys
- promotes the excessive use of Equality Impact Assessments, which are an expensive and bureaucratic burden on the public sector
- tells councils to translate into foreign language, which undermines integration by discouraging people from learning English, weakens community cohesion and a common British identity, and wastes taxpayers' money.
As part of our wider consolidation of practice guidance, we do not intend to replace it.
The National Planning Policy Framework makes clear that councils should plan to provide wide choice of high quality homes based on the needs of their local community. Councils should simply use their common sense in light of prevailing legislation, planning policy and material considerations.
I hope this will send a positive message about treating all members of the community with respect and with due process, and that this government is restoring a proper sense of fairness to the planning system."
"In my written statement of 1 July 2013, official report, column 41 WS, I noted the government's intentions with regard to the importance of the protection of the green belt.
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 belt and 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 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 are 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.
Moreover, ministers are considering the case for further improvements to both planning policy and practice guidance to strengthen green belt protection in this regard. We also want to consider the case for changes to the planning definition of 'travellers' to reflect whether it should only refer to those who actually travel and have a mobile or transitory lifestyle. We are open to representations on these matters and will be launching a consultation in due course."
"this is an appeal involving a traveller site in the green belt".
"Mrs Moore's appeal was recovered .pursuant to the Secretary of State's wide discretion to recover planning appeals and on the basis that the appeal involves a traveller site in the Green belt. The decision to recover Mrs Moore's appeal was an application of the WMS which embodies a decision by the Secretary of State to consider for recovery Green belt appeals in order to test the application and ensure correct understanding of the NPPF and PPTS."
The WMS then in place was WMS 1 as revised by WMS2.
"this is an appeal involving a traveller site in the Green Belt".
"Like Mrs Moore's appeal, Ms Coates' appeal was recovered .pursuant to the Secretary of State's wide discretion to recover planning appeals and on the basis that the appeal involves a traveller site in the Green belt. The decision to recover Ms Coates' appeal was an application of the WMS which embodies a decision by the Secretary of State to consider for recovery Green belt appeals in order to test the application and ensure correct understanding of the NPPF and PPTS. The purpose of the recovery was to ensure that the outcome of the appeal is correct, in the sense of (sic) that it should represent a proper application of PPTS policy to the particular facts"
7 Position of Romany Gypsies and Irish Travellers, and effects of the changes in recovery practice
"From working extensively with Romany Gypsies I am aware that as a group they are severely disadvantaged when compared with the general population in terms of accommodation, health, life expectancy, infant mortality and education."
"In terms of health and education, ethnic Gypsies and Travellers are one of the most deprived groups in Britain. Life expectancy for Gypsy and Traveller men and women is 10 years lower than the national average. Gypsy and Traveller mothers are 20 times more likely than the rest of the population to have experienced the death of a child. In 2003, less than a quarter of Gypsy and Traveller children obtained five GCSEs at A*- C grades, compared to a national average of over half. The Commission's research has shown that a lack of authorised sites for Gypsies and Travellers perpetuates many of these problems. Thus, there is a clear relationship between effective access to the planning system and the welfare of this disadvantaged racial group"
"would be likely to affect Romany Gypsies and Irish Travellers. Romany Gypsies and Irish Travellers are recognised as having a protected characteristic under the Equality Act 2010
The Government takes its responsibilities seriously and also recognises that Romany Gypsies and Irish Travellers are ethnic minorities that experience poor social outcomes and discrimination. It therefore wants changes to policy in relation to these groups to promote equality and reduce discrimination."
a. appeals lodged from 1st July 2011 to 1st July 2013 (pre WMS 1)
b. appeals lodged from 1st July 2013 to 1st September 2014 (post WMS 1)
(The tables appear on the next page)
Appeals lodged from 1st July 2011 to1st July 2013 (pre WMS 1)
|1st July 2011 to 1st July 2013||Lodged and recovered in period||Lodged in period but recovered after period||Total recovery|
|All GB Appeals||2,561|
|All residential (including use) in Green Belt||1,251||24
|Traveller sites in above GB residential figure||89||19 (21.3%)||51||70
|Other residential in above GB residential figure||1,162|| 5
|1st July 2011 to 1st July 2013||Lodged and recovered in period||Lodged in period but recovered after period||Total recovery|
|All GB Appeals||1,383||1,383|
|All residential (including use) in Green Belt||741||39
|Traveller sites in above GB residential figure||28||33
(based on 28)
|Other residential in above GB residential figure|| 713
(based on 28)
a. 85 new dwellings (St Albans)
b. 750 homes and a new neighbourhood centre (Basildon)
c. 100 new dwellings and associated works (St Albans)
d. 265 dwellings and associated works (Castle Point)
e. 280 dwellings and associated works (Northumberland)
f. 92 dwellings and associated works (Newcastle under Lyme).
i) on 1st May 2013 Ministers were warned that
"Urgent. There is growing concern amongst interested parties that few traveller appeals involving sites in the Green Belt have recently been issued, and further delay risks reputational damage to the Planning Inspectorate."
Officials suggested recovering between 3 and 6 cases, which were identified, and the submission went on:
" Recovering these appeals offers the opportunity to send clear messages in the decision letters in relation to the importance of effective provision in the Local Plan (or at least significant progress towards getting effective provision in place) and the weight that should be given to different types of personal circumstances when considering planning decisions"
ii) that memorandum states that the Ministers' then view was that a number of appeals should be selected which could provide:
"opportunities to articulate key Ministerial messages in support of (PPTS) in a way which does not entail substantial legal risk."
iii) however on 8th May 2013 Mr Brandon Lewis MP, the Minister for Local Government, now asked officials to list all pending appeals for Gypsy and Traveller sites in the Green Belt. Officials again advised the Minister to select between 3 and 6 cases from a list of 6 cases
"as we consider that these offer the clearest opportunities for sending policy messages about the importance of effective provision in the Local Plan (or at least significant progress towards getting effective provision in place) and the weight that should be given to different types of personal circumstances when considering planning decisions; and that the remaining cases are released for a decision."
iv) on 10th June 2013, the Minister decided that a further six appeals should be recovered. On 24th June 2013 (after officials had again advised against recovering no more than 3 to 6 appeals, and had at his request set out the resource implications of doing so) the Minister approved a submission that the number recovered be increased. That led to WMS 1 on 1st July 2013;
v) however by the end of July 2013 the Minister decided that a further 9 should be recovered. On 31st July 2013, against advice from the officials, the Minister asked that a decision about to be issued by the Inspectorate should be held in abeyance. It appears from the terms of a very significant memorandum written by the Chief Planning Inspector to the Minister Mr Lewis on 7th August 2013, that an instruction had been issued that if a decision was about to be issued by the Inspectorate it should be referred to the Minister. It included these passages (my italics):
"5 Notification was as per the protocols. They are in place to give Ministers advance warning of appeal decisions. They should not however be used as an avenue for the recovery of appeals where Ministers do not agree with the planning judgment being exercised by the appointed Inspector.
6 The vast majority of appeals are decided by Inspectors ..Whilst it is open to the Secretary of State to recover any appeal for his own decision at any point prior to the Inspector's decision being issued, this "recovery of jurisdiction" is exercised selectively, and then only under one of the published criteria in the attached annexe" (the 2008 WMS). Less than 1% of appeals each year are recovered.
9 (discussions) between (the Planning Inspectorate) and Planning Casework in mid July. The understanding was that as you had indicated you did not wish to recover all traveller appeals in the Green Belt- a point you made in the Written Ministerial Statement on 1 July- the normal recovery criteria would apply. This appeal relates to 2 pitches, below the "threshold" of 4 pitches where recovery is automatic, so it was agreed at that point that the appeals should not be recovered.
10 Further to a recent instruction from the Secretary of State's office, we are now holding back the decision, as instructed, so that you can personally consider whether the appeals should be recovered in this case. However this case has already been in the appeal system for a considerable period of time given (an adjournment that had occurred from February to June). As such it is important that a decision on recovery is reached swiftly.
11 We do not consider the appeals merit recovery in this case. You have already recovered 17 other cases which will be used to articulate Ministerial thinking- the inspector's reports in 6 of those cases were sent to Planning casework in early July; the remainder will be following in the near future. Continual recovery would lead to significant pressure to recover many, if not all, traveller appeals in the Green Belt- contrary to your Statement. .. Not recovering the appeals would on the other hand demonstrate your intention to pursue a selective approach to the recovery of small scale traveller appeals in the Green Belt, in accordance with the ministerial statement" ;
vi) a similar Ministerial decision was made about three more appeals on 14th August 2013.
vii) on 6th September 2013 the Minister decided that a further 5 appeals be recovered which had been held in abeyance, the officials having advised against recovery. The Minister also decided that all appeals where PINS was likely to issue decisions before the end of October should be recovered. Officials reported to him that they numbered 20, and the instruction was confirmed;
viii) at the beginning of November 2013, officials were instructed to hold all further Gypsy and Traveller appeals in abeyance pending a decision on how Ministers wished to proceed after the 6 month period in WMS expired. On 12th December 2013, PINS was instructed to recover 7 such appeals when they were ready for decision;
ix) on 9th January 2014 Ministers decided to extend the WMS, and recover all relevant appeals for 6 months or until a revised policy was in place. The WMS was the subject of discussion before its issue on 17th January 2014, by which time it had been decided that all relevant appeals would be recovered "for the time being" but no end date was included in the new WMS (WMS 2);
x) at paragraphs 44 to 45 of his witness statement Mr Watson describes the situation in December 2013 and January 2014. After describing how Ministers wanted further consultation on a new policy and/or guidance, and wanted the WMS 1 policy on recovery extended he goes on (my italics)
"Ministers confirmed on 9th January 2014 that they wanted to extend the WMS and continue to recover relevant appeals for a further 6 months or until revised policy was in place.
In early January 2014 a draft WMS was submitted to Ministers. This did not set an end date and was clear that the Planning Inspectorate would recover all relevant appeals for the time being .."
xi) according to paragraph 46 (again my italics)
" during the latter half of 2013, Ministers had taken overall control of the G & T ...sic) Green Belt appeals (WMS 2) did not expressly rule out the possibility of all appeals being recovered as a consequence, and indeed to date, Ministers have considered it necessary to instruct (PINS) to continue to recover all such appeals until instructed otherwise."
"You will recall that, in July 2013, it was not Minister's intention to recover all G & T (sic) appeals in the GB but in practice, almost all such appeals have been recovered."
a. from 1st July 2013, all appeals relating to Gypsy and Traveller sites in the Green Belt were being considered for recovery;
b. in fact almost all were being recovered;
c. as a matter of fact, in the latter part of 2013, and certainly from September at the very latest, all were being recovered;
d. from January 2014, although WMS 2 does not say that all would be recovered, it was in fact the intention of Ministers that all should be recovered;
e. that approach (recovery of all) continued until 2nd September 2014 when the figure was reduced to 75% as a result of the Department's officials and Ministers considering their position in the context of these judicial review proceedings having been commenced.
"seems likely to give rise to criticism that this change targets gypsies and travellers disproportionately."
That was the last time the topic was ever raised, at least in the redacted copies of the submissions made to Ministers and disclosed to the Court. Nor is there any suggestion in the evidence of Mr Watson (which is full and careful) that the topic was ever raised or referred to again. The case for the SSCLG before me was that no assessment was required. The Claimants and EHRC suggest that, while no formal assessment may have been required, proper consideration of the effects was required, and that its absence was a most significant omission. I shall give the Court's views on that in due course.
"Recovery of over 30 appeal cases has severe and immediate resource implications for PINS, the casework team, and the in house legal team. These would need to be resolved quickly or these cases will remain in the appeals system for unacceptably long periods of time."
a. 13th May 2013
"few traveller appeals involving sites in the Green belt have recently been issued, and further delay risks reputational damage to the Planning Inspectorate. The Planning Inspectorate has indicated that they will need to write to affected parties this week to explain the delays, given the queries and complaints they have received."
b. 3rd June 2013
"the team is already fully loaded. If you wished to take all 26 ..cases, we continue to estimate that we would require 3-4 additional experienced casework officers (based on our knowledge of the length of time the average traveller case takes.)"
c. 24th June 2013
"You have previously agreed to increasing resources for the casework team to deal with those appeals currently identified. We will also need to increase legal resources. Subject to your decision on the approach to adopt now and the number of additional recoveries we make, there may be further resource implications"
d. 7th August 2013: I have already referred to the Chief Planning Inspector's memorandum of that date. He had also referred to
"continuing delays in determining traveller appeals "(paragraph 10).
e. 19th December 2013. The submission to the Minister Mr Brandon Lewis MP said
" Pressing: we need now to instruct PINS on how Ministers wish to proceed, so as to avoid a backlog of unissued cases building up at PINS .. progress is proving slow .. significant resource implications the impact of this (recovery of all cases) will be that the additional casework resource to deliver these cases will need to be maintained until at least October 2014."
a. the Defendant's recovery of the appeal constituted indirect discrimination contrary to ss 19 and 29(6) of EA 2010 and a breach of the public-sector equality duty ("PSED") contrary to s 149;
b. the Defendant has breached the Claimant's right under Article 6 of the European Convention of Human Rights ("ECHR") both through preventing determination by an independent and impartial tribunal and through delay;
c. the Defendant has shown bias and irrationality towards the Claimant as a Gypsy and Traveller contrary to common law;
d. the Defendant has breached the Claimant's right under Article 8 of the ECHR in respect of her private and family life and her home;
e. the Defendant has breached the Claimant's right under Article 14 of the ECHR read with her Article 8 right;
f. Mr Jones also adopted the ECHR's additional ground relating to a policy being undisclosed.
a. the Defendant SSCLG's recovery of her appeal within the Green Belt constituted an abuse of power, because it was unnecessary, because in doing so he failed to consider the circumstances of the case, and it was disproportionate;
b. there has been a breach of Article 14 of ECHR because of differential treatment for the reasons similarly advanced by Mr Jones;
c. there has been a breach of the PSED under s 149 EA 2010;
d. there has been a breach of Article 6 of ECHR, for the reasons similarly advanced by Mr Jones;
e. Mr Cottle also adopted the additional ground taken by ECHR about the undisclosed policy.
a. looked at overall, the Recovery Practice disadvantaged (and continues to disadvantage) ethnic Gypsies and Travellers applying for planning permission for a home in the Green Belt because it takes substantially longer to determine a recovered appeal. The result is that an ethnic Gypsy or Traveller applicant with a meritorious appeal is inherently more likely to face a far longer wait for planning permission than a non-Gypsy or Traveller applicant with a meritorious appeal;
b. this was a "stark case" of indirect discrimination under s 19 of the Equality Act 2010 and of a breach by the Secretary of State, and in particular his Minister, of the PSED under 149 of the Equality Act 2010;
c. he has failed to show that his practice or policy was a proportionate means of achieving a legitimate aim;
d. In addition, on the evidence lodged by the Defendant, the Recovery Practice was unlawful (at least until September 2014) because it was fundamentally inconsistent with the Defendant's publicly stated position.
a. The SSCLG, who has a wide discretion to recover appeals, is not independent but he is the head of the planning system and is entitled to consider decisions which engage his own planning policies, and is entitled to decide to recover types of appeal if he considers that relevant policies are not being applied correctly in them;
b. he is entitled to recover as many or as few as he considers necessary subject to the EA 2010 and common law duties (e.g. fairness);
c. the Court should allow him a large measure of discretion in that matter. If a recovered decision is flawed, then a challenge can be made in this Court under ss 288/289 TCPA 1990;
d. the criteria for recovery are not a policy as such but cover many different situations;
e. given the importance of Green Belt policy, such cases raised important issues, and he was entitled to recover any such case he is entitled to use recovery as a tool so that he can determine what weight should be applied to the considerations at play;
f. the SSCLG was entitled to be concerned about the application of PPTS. It is not a single test policy;
g. the Court should allow him a wide margin of appreciation in his determining in 2013 to change the recovery criteria as occurred in WMS 1
h. he went through a long process of consideration with his officials. The WMS was not just about sending messages on how unmet need should be treated, but was based on an exhaustive set of detailed considerations over nearly 6 months which the Minister was ideally placed to assess, against a background of a lawful PPTS which embodies equality objectives, and was designed to set the basis for recovering appeals to enable the Secretary of State to be the one allotting weight to the various factors in multiple appeal scenarios;
i. There was no blanket recovery policy under WMS 1. Such a policy was only adopted under WMS 2;
j. the only effect of the policy causative of disadvantage was that the determinations of appeals were delayed;
k. there was no indirect discrimination because ethnic gypsies and travellers were treated in the same ways as non-ethnic gypsies and travellers, which is the proper comparator group;
l. in any event the policy or practice was in pursuit of a legitimate aim and was proportionate. There was no need for any formal assessment of the impact on equality, but "due regard" was had within the meaning of s 149 of EA 2010;
m. as to the alleged breach of Article 6, the delays were not unreasonable;
n. there is no evidence of bias, abuse of power or irrationality.
9 Equality Act 2010
i) Role of EHRC
ii) Direct and indirect discrimination
iii) Interpretation of section 19 (1) and (2)(a) and (b)
iv) Arguments relating to claim of indirect discrimination under section 19
v) Arguments relating to Public Sector Equality Duty in section 149
vi) Court's discussion and conclusions on section 19 arguments
vii) Court's discussion and conclusions on section 149 arguments
i) Role of EHRC
(ii) Direct and indirect discrimination
"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.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if
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
(3) The relevant protected characteristics are
- gender reassignment;
- marriage and civil partnership;
- religion or belief;
- sexual orientation."
iii) Interpretation of section 19 (1) and (2) (a) and (b)
"(a) A applies, or would apply, it to persons with whom B does not share the characteristic"
that means that for the ethnic Gypsy or Traveller one takes as the comparator group other non-ethnic travellers affected by the provision, criterion or practice. However when one considers the next test at (b)
"(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"
he says that now one should take as the comparator group a wider group, because those who share the particular characteristic (i.e. other ethnic gypsies) are at a particular disadvantage when compared with persons with whom B does not share the characteristic of race (i.e. races other than ethnic gypsies, e.g. Chinese, White English etc.) This is because other races are less likely to be travellers, and a higher proportion of those with the protected characteristic of race, being ethnic gypsies and travellers, will be caught by the provision, practice or criterion, than those who will not. He refers to CRE v Dutton  1 QB 783 (CA), itself a case about gypsies and travellers under the predecessor legislation to the EA 2010, where a public house (engagingly called the Cat and Mutton) exhibited a sign saying " No Travellers". Nicholls LJ, as he then was, having rejected a claim for direct discrimination, said this when upholding the claim for indirect discrimination
"Clearly the proportion of gipsies who will satisfy the "No Travellers" condition is considerably smaller than the proportion of non-gipsies. Of the estimated gipsy population in the United Kingdom of some 80,000, between one half and two thirds now live in houses. But this still means that a far higher proportion of gipsies are leading a nomadic way of life than the rest of the population in general or, more narrowly, than the rest of the population who might wish to resort to the Cat and Mutton."
"The discrimination issue
7 The ET found that the appropriate age group was people aged 60 to 65, who would not be able to obtain a law degree before they retired . That group was put at a particular disadvantage compared with people younger than that, because they were prevented from reaching the third threshold and the status and benefits associated with it . The claimant was put at a disadvantage because he could not achieve the qualification (and therefore the status) before he retired. The ET noted that it was not argued that he was put at a disadvantage because fewer people in his age group had law degrees .
8 The EAT and Court of Appeal were however persuaded that what put Mr Homer at a disadvantage was not his age but his impending retirement. Had it not been for that, he would have been able to obtain a degree and reach the third threshold. As Mr Lewis argues on behalf of the respondent, the key words in regulation 3(1) (b) are "puts at". What is it that puts him at or causes the disadvantage complained of? It is the fact that he is due to leave work within a few years. Regulation 3(2) requires that the relevant circumstances in the complainant's case must be the same, or not materially different, from the circumstances in the case of the persons with whom he is compared. So, argues Mr Lewis, you have to build the relevant circumstance into the comparator group also, in this case the proximity of leaving work. So Mr Homer must be compared with anyone else who is nearing the end of his employment for whatever reason. Anyone who was contemplating leaving within a similar period whether for family reasons or some other reason - would face the same difficulty. That is what puts him at a disadvantage and not the age group to which he belongs. Indeed, what Mr Homer is arguing for would put people of his age group at an advantage compared with younger people, because they would be able to get the benefits of the third threshold without having a law degree when others would not.
9 This argument involves taking the particular disadvantage which is suffered by a particular age group for a reason which is related to their age and equating it with a similar disadvantage which is suffered by others but for a completely different reason unrelated to their age. If it were translated into other contexts it would have alarming consequences for the law of discrimination generally. Take, for example, a requirement that employees in a particular job must have a beard. This puts women at a particular disadvantage because very few of them are able to grow a beard. But the argument leaves sex out of account and says that it is the inability to grow a beard which puts women at a particular disadvantage and so they must be compared with other people who for whatever reason, whether it be illness or immaturity, are unable to grow a beard.
10 Ironically, it is perhaps easier to make the argument under the current formulation of the concept of indirect discrimination, which is now also to be found in the Equality Act 2010. Previous formulations relied upon disparate impact so that if there was a significant disparity in the proportion of men affected by a requirement who could comply with it and the proportion of women who could do so, then that constituted indirect discrimination. But, as Mr Allen points out on behalf of Mr Homer, the new formulation was not intended to make it more difficult to establish indirect discrimination: quite the reverse (see the helpful account of Sir Bob Hepple in Equality: the New Legal Framework, Hart 2011, pp 64 to 68). It was intended to do away with the need for statistical comparisons where no statistics might exist. It was intended to do away with the complexities involved in identifying those who could comply and those who could not and how great the disparity had to be. Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question. It was not intended to lead us to ignore the fact that certain protected characteristics are more likely to be associated with particular disadvantages."
a. it is being applied in her example to persons (other potential employees who are male) with whom a woman potential employee does not share a characteristic (gender)
b. it puts that woman and others with whom she shares the characteristic (women potential employees) at a disadvantage, when compared with those who do not share it (male potential employees).
a. as noted above, paragraph 6 of the PPTS Equality Impact Assessment identified the particular effect of the PPTS policy on ethnic gypsies and travellers;
b. On 14th March 2013, Ministers were advised that recovering all Gypsy and Traveller appeals in the Green Belt
"seems likely to give rise to criticism that this change targets gypsies and travellers disproportionately."
iv) Arguments relating to claim of indirect discrimination under s 19
c. puts, or would put, B to disadvantage, and
d. A cannot show it to be a proportionate means of achieving a legitimate aim
i) The burden is on the Defendant SSCLG to show that it is a proportionate means of achieving a legitimate aim;
ii) Apart from the warning officials gave Ministers about the potential criticism that the recovery of all traveller appeals in the Green Belt would affect gypsies and travellers disproportionately, there is no evidence at all this matter was ever addressed, let alone addressed proportionately;
iii) if it was a legitimate aim to give a 'clear steer' (as it was put) on the application of PPTS, there were several other ways of achieving that end, which would have less effect on ethnic Gypsies and Travellers, ways of pursuing that objective. For example:
a) carrying out a formal review of the previous recovery policy/practice to inform the decision as to what extent additional gypsy and traveller appeals needed to be recovered to promote the objective the preferred approach of his officials;
b) recovering gypsy and traveller appeals in the Green Belt usually only where they concern four pitches or more the advice given to the Defendant on 23 January 2013;
c) selectively recovering those appeals that offered the clearest opportunities for giving guidance the repeated advice given to the Defendant by his officials on 1 May, 14 May 2013 and 3 June 2013;
d) recovering a proportion of gypsy and traveller appeals in the Green Belt at a rate significantly lower than 100%;
e) issuing a guidance note to local authorities and inspectors, setting out the Defendant's position;
f) recovering all, or a proportion of all, gypsy and traveller appeals in the Green Belt for a shorter period;
iv) there is no evidence that the Defendant considered less intrusive alternatives to the Recovery Practice.
i) "ensur[ing] a fair and equal treatment for travellers, in a way that facilitates the traditional and nomadic way of life of travellers while respecting the interests of the settled community";
ii) Policy E making all traveller sites in the Green Belt inappropriate development in policy terms, and recognising a range of factors which must often be assessed;
iii) the equality assessment conducted into the PTTS policy showed that Green Belt is a particularly difficult area. When considering the PPTS and assessing it against PSED and equalities legislation, the Secretary of State paid particular attention to the need to balance meeting Gypsy and Traveller needs against the need to "ensure that traveller sites are developed in appropriate places and not in Green Belt land";
iv) the PPTS is a lawful policy document which embodies the Secretary of State's manifest concerns about (a) Green Belt protection from Gypsy and Traveller development, (b) ensuring fair and equal treatment for Gypsies and Travellers and the settled community. These matters were all very important and fresh in the Secretary of State's mind when keeping an eye on progress under the PPTS in 2013. The Secretary of State went through a lengthy process before he adopted the WMS criterion, as Mr Watson's evidence shows;
v) that process enabled the Secretary of State to consider in the round, on the basis of evidence and advice, whether his initial concerns about the way PPTS was being applied should lead to his recovering more decisions, and if so, on what basis. The advice of his officials was just that it did not fetter the Minister but provides evidence of the matters which the Minister was considering;
vi) the discussions and advice began in early 2013. The existing lower threshold for recovery in GB cases was identified, and the likelihood of greater delay due to recovery clearly flagged up;
vii) it was noted that the absence of evidence that 'unmet need' itself tended to lead to a VSC finding (very special circumstances). That was one of the two specific points raised by Ministers in January 2013;
viii) by 14 March 2013, the Minister had reached the view that he wished to recover more cases. He was advised about the implications for resourcing i.e. how such an increased recovery was to be dealt with by the Department so as to enable it to be handled appropriately. No advice was received that suggested that it would be inappropriate for the Minister to recover appeals to ensure that in this difficult area, decisions were made in the way he thought fit;
ix) having reached that view in principle, the Minister proceeded on 1st May 2013 to consider how many appeals should be recovered. The issue is how, though recovered appeals, clear messages might be sent about how the PPTS should be applied; and at this stage delay in appeals processing was clearly flagged up;
x) officials identified 3 to 6 cases and said that those were most suitable. The Minister was unconvinced and requested sight of all pending Green Belt Gypsy and Traveller appeals;
xi) a further submission dated 13 May 2013 provided this information with more advice. The wide ambit of the "messages" which the Minister was keen to send is clear from paragraph 3 of the submission of that date (officials said that recovering 3-6 cases from a list "would offer the clearest opportunities for sending policy messages about the importance of effective provision in the Local Plan (or at least significant progress towards getting provision in place) and the weight to be given to different types of personal circumstances when considering planning decisions"). Advice about resourcing was also given. A limited recovery was advised;
xii) the Minister did not rush to recover many cases or to introduce the criterion. He had a meeting on 23 April 2013 to discuss various recovery options, but rather than look at just 3-6 cases, he requested to see all the pending cases. The advice was aimed at ensuring greater recovery took place as far as possible without further delay in processing appeals. The Minister looked at all the pending cases when forming his view about the need for a WMS criterion. The decision was made to adopt "Option 2" on 24th June 2013. The reason for the adoption of this approach was so that the Minister would be the one allotting weight across a range of cases when applying the planning balance in the PPTS.
i) the WMS was not just about sending messages on how unmet need should be treated;
ii) it was based on an exhaustive set of detailed considerations over nearly 6 months which the Minister was ideally placed to assess;
iii) it was against a background of a lawful PPTS which embodies equality objectives;
iv) it was designed to set the basis for recovering appeals to enable the Secretary of State to be the one allotting weight to the various factors in multiple appeal scenarios.
i) the only real way to achieve the objective was for the Secretary of State to decide the appeals as promulgator of the PPTS and head of the planning system. The other suggested means were raised with the Secretary of State (advice to Inspectors, selective recovery, lower % recovery) and he rejected them;
ii) The Secretary of State must in these circumstances be entitled to reserve to himself such cases as he considers that it is necessary for him to decide. If every case is different and requires the allocation of weight to various factors, then it is hardly surprising or disproportionate for the Secretary of State to wish to decide them himself, rather than try to deal with the matter at a generalised level;
iii) in such circumstances, to recover a high proportion or even 100% pro tempore was proportionate to the objective of sending clear messages through decisions. The wider the category of factual circumstances, the more examples are likely to be needed to send out "clear messages" for otherwise future cases will not have sufficiently close (rarely of course identical) comparator Secretary of State decisions.
(v) Arguments relating to Public Sector Equality Duty in s 149
"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;
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are
(1) "As stated by Arden LJ in R (Elias) v Secretary of State for Defence  EWCA Civ 1293 at 274,  IRLR 934,  1 WLR 3213, equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department  EWCA Civ 1293,  IRLR 934,  1 WLR 3213 (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health  EWCA Civ 154 at 26-27] per Sedley LJ.
(4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing  EWHC 2062 (Admin) at 23-24.
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin),  PTSR 1506, as follows:
i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) "[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC  EWHC 559 (Admin) at 84, approved in this court in R (Bailey) v Brent LBC  EWCA Civ 1586 at 74-75.)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be "rigorous in both enquiring and reporting to them": R (Domb) v Hammersmith & Fulham LBC  EWCA Civ 941 at 79 per Sedley LJ."
(8) It is for the Court to decide for itself if due regard has been had, but providing this is done it is for the decision maker to decide what weight to give to the equality implications of the decision (following R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin), per Elias LJ @ -).
(9) "[T]he duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consideration with appropriate groups is required" (R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin), per Elias LJ @ ).
(10) The duty to have due regard concerns the impact of the proposal on all persons with the protected characteristic and also, specifically, upon any particular class of persons within a protected category who might most obviously be adversely affected by the proposal (Bracking, per McCombe LJ @ ).
"it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude" and "In the absence of evidence of a 'structured attempt to focus upon the details of equality issues' (per my Lord, Elias LJ in Hurley & Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged".
i) In a case where a large number of very disadvantaged people are affected, the "due regard" necessary is very high. That is the case here, because ethnic Gypsies and Travellers are a seriously and multiply disadvantaged group, and the timely provision of planning permission to this group for homes in the Green Belt in meritorious cases is of high importance in reducing those disadvantages.
ii) Where a decision maker identifies a need to eliminate discrimination, he or she is required to do something about it. He referred to Mitting J in the unreported case of R (BAPIO Action) v Royal College of General Practitioners  EWHC 1416 (Admin) at :
"Section 149 does not permit a person exercising public functions to identify the need to eliminate discrimination in one of the public functions it exercises and then do nothing about it. If it acted thus it would not be "having regard" to the need to eliminate discrimination in the exercise of its public function, it would be disregarding a specific need which it had itself identified" (original emphasis).
He referred also to Pieretti v London Borough of Enfield  EWCA Civ 1104, per Wilson LJ at .
iii) On the evidence lodged, it appears to the Commission that the Defendant did not comply with his public sector equality duty. In particular:
(1) there is no evidence that the Defendant had any appreciation of the equality objectives when implementing the Recovery Practice;
(2) there is no evidence that the Defendant appreciated the impact of delay on Gypsies and Travellers, e.g. on the link between absence of planning permission and health and educational outcomes;
(3) there is no evidence that the Defendant had any regard (still less due regard) to the impact of the Recovery Practice (i.e. the blanket delay caused to all ethnic Gypsy and Traveller applicants in the Green Belt) as it affected equality objectives for that group;
(4) there is no evidence that the Defendant took any steps to acquire the information he needed to inform himself for the purpose of his public sector equality duty;
(5) the Defendant did not consult the groups which he consulted when carrying out an equality impact assessment in relation to the PTTS or give anybody an opportunity to make representations on the Recovery Practice, so as to inform him for the purpose of his public sector equality duty. Indeed, interested persons were effectively prevented from making representations, because the Defendant's Recovery Practice was contrary to his public statements as to his practice in WMS1 and WMS2 (see further the Commission's submissions on the public law duty to adhere to published policies, below);
(6) the duty is a continuing one, but it appears that there was no consideration of the equality impacts of the Recovery Practice upon the expiry of WMS1 or at any other time;
(7) if contrary to the evidence the Defendant did recognise that the Recovery Practice would have an adverse impact on equality objectives, he was required to take steps to mitigate the impact, but he did not do so (see further the Commission's submissions on indirect discrimination ).
i) the PSED under s 149 EA 2010 requires public authorities, in the exercise of their functions, to have due regard to three matters as set out in s 149(1) (a) to (c). The Courts have clarified that the discharge of the PSED is a matter of substance rather than form: R (Brown) v. Secretary of State for Work and Pensions  PTSR 1506, at . There is no need, for instance, for a formal EqIA on every occasion when a public authority function is exercised: R (Hurley) v. Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin);
ii) "Due regard" in s 149 means such regard as is appropriate in all the circumstances of the case: R (Baker) v. Secretary of State for Communities and Local Government  EWCA Civ 141. It is accepted (EHRC) that in this case there was no need for a formal EqIA (even on the WMS decision, let alone on individual applications of the criterion), and that the question is one of substance not form. That is a very broad spectrum, designed to reflect the reality that in some cases a formal EqIA is necessary (e.g. PPTS), and in others a very much lesser degree of consideration is legally necessary to ensure equality is properly considered. It is clear that where equality considerations are not engaged, or only to a very limited degree indeed, the application of s149 is similarly circumscribed. There are many decisions where due regard is actually no regard, because of no equality implications arising from the function;
iii) 'Due' regard was given in this case:
a) the only identified impact on a protected group (delay) was self-evidently also an impact on a non-protected group. There was therefore no discrimination as defined in the EA 2010 based on delay delay did not engage EA 2010;
b) "due regard to the need to eliminate discrimination" (see s 149(1)(a) Tab 2) was inherent in the process of ensuring good decisions in line with the PPTS;
c) there was no real sense in which some additional delay in reaching a lawful application of an equality-compliant policy gave rise to 'equality of opportunity' issues, under s 149 (1) (b). None has been spelled out by the Cs or the EHRC. Far more obviously relevant is a correct outcome under the PPTS;
d) similarly, the outcome under the PPTS would be relevant to fostering good relations (see PPTS and EqIA references earlier). It overextends the statutory objective to suggest it arises where delay is concerned.
i) the decision to recover jurisdiction in each of the Claimant's cases was a procedural decision which transferred jurisdiction in the Claimant's substantive appeal back to the Secretary of State;
ii) recovery of an appeal under either WMS is intended, as the WMS both stated, to restore overall control of Gypsy and Traveller Green Belt cases to the Secretary of State to the extent that he wishes. That was the case where the Claimants' appeals were concerned. The PPTS itself was subject to a full EqIA and PSED analysis, which rendered it unnecessary and disproportionate for the Secretary of State to carry out a further PSED analysis of the recovery decision itself;
iii) it is the PPTS that includes relevant policy on the exercise of the Secretary of State's planning functions in relation to Gypsy and Traveller Green Belt appeals. WMS1 and WMS2 do not. They involve no new policies or criteria to be applied in Gypsy and Traveller Green Belt cases. The only change they effect is in the identity of the decision-maker. But even then, the point goes nowhere. By paragraph 2(6) of Schedule 3 to the 1990 Act, the inspector's decision on a non-recovered appeal is to be treated as that of the Secretary of State.
iv) insofar as delay is concerned, the fact that recovery of appeals can give rise to additional delay is self-evident. Furthermore, delay was considered by the Secretary of State before he made the WMS. It is well-established in judicial review proceedings that, where there is a conflict of evidence, the Court should take the facts as set out by the Defendant: R v. Board of Visitors of Hull Prison, ex parte St Germain (No 2)  1 WLR 1401, per Geoffrey Lane LJ at 1410H. In fact, the Claimants and EHRC do not point to any evidence to contradict that of Mr Watson. In those circumstances, his evidence should be accepted;
v) in any event, it is plain from the Ministerial submissions that the consequences of recovery in terms of the time taken to make decisions on appeal and the consequential resource implications were at the forefront of officials' advice to the Secretary of State: see, for example, paragraphs 8-17 of the 3 June 2013 submission under the heading "Resourcing". It is simply wrong to suggest that the Secretary of State failed to have regard to delay.
(vi ) Court's discussion and conclusions on s 19 arguments
"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 for 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. "
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.
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. It has the advantage of avoiding later attempts by other applicants or appellants to distinguish the policy conclusions reached on the basis that they are tied to the facts of one case. It also avoids disadvantaging all appellants (and local planning authorities and other interested parties) by having the cases of all waiting for determination, and, given the far smaller numbers involved, will cause less delay in determination of the selected appeals. Lastly, in the context of the objective of avoiding indirect discrimination against a racial group, those whose appeals are delayed are not all those who have made an application, but a far smaller number whose appeals are those selected for recovery.
"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. It would not have been difficult to do some exercise. I note for example that there had been schedules of cases prepared in 2013 in the run up to WMS 1, and no reason is put forward why some similar straightforward exercise (or even a sampling exercise of say 10-15 cases) could not have been undertaken.
(vii) Court's discussion and conclusions on s 149 arguments
10 Articles 6 and 8 of ECHR: arguments, discussion and conclusions
6 Acts of public authorities.
(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2)Subsection (1) does not apply to an act if
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. "
"In the determination of his civil rights and obligations , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ."
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
i) the SSCLG, by recovering the appeals, has deprived the Claimants (and travellers in recovered travellers' sites cases) of a hearing before an Inspector, who would be impartial, and instead decided to determine them himself, when he is not independent;
ii) delay has been caused to the determination of appeals.
" 54. I accordingly hold that in relation to the judicial review of the Secretary of State's decision in a called in application or a recovered appeal under the planning legislation and to a review of the decisions and orders under the other statutes concerned in the present appeals, there is in principle no violation of article 6 of the European Convention on Human Rights as set out in the Schedule to the Human Rights Act 1998. The scope of review is sufficient to comply with the standards set by the European Court of Human Rights. That is my view even if proportionality and the review of material errors of fact are left out of account: they do, however, make the case even stronger. It is open to the House to rule on that question of principle at this stage of the procedure in the various cases."
117. ..No one expects the inspector to be independent or impartial in applying the Secretary of State's policy and this was the reason why the court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy article 6 has nothing to do with the "safeguards" but depends upon the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal.
118. My Lords, I can deal much more briefly with the other two cases. In Varey v United Kingdom Application No 26662/95 27 October 1999 the Commission considered a complaint by gypsies against whom enforcement proceedings had been taken for stationing caravans on land without planning permission. They had applied three times for permission. On the first occasion, an appeal to the Secretary of State was dismissed. On the second occasion, the inspector said that there had been a change in circumstances and recommended that permission be granted but the Secretary of State disagreed. He said that the new circumstances were insufficient to justify overriding the Green Belt policy. On the third occasion the inspector again recommended that permission be granted and for similar reasons the Secretary of State rejected his recommendation and dismissed the appeal. In no case did the applicants appeal to the High Court.
119. The Commission, following the Bryan case, 21 EHRR 342, said that there had been no violation of article 6. The High Court's jurisdiction on appeal from the Secretary of State was sufficient. So the case adds little to Bryan itself. I would only comment that I find puzzling a remark of the Commission, at paragraph 78, that -
"the procedural protection afforded to the applicants' interests by the process of a public inquiry before a planning inspector, who had the benefit of inspecting the site and of receiving written and oral evidence and representations, must be regarded as considerably diminished by the rejection on two occasions by the Secretary of State of the inspector's recommendations."
120. The Secretary of State does not appear to have differed from the inspector on any finding of fact or evaluation of the facts. He disagreed because he did not think that the inspector had given sufficient weight to the importance of maintaining the Green Belt. This is a pure question of administrative policy or expediency. It has nothing to do with the issues on which it is essential for the inspector to be judicial and impartial. However, despite these remarks, the Commission concluded that even though the safeguards had been diminished, the procedure still complied with article 6.
121. Finally there is Chapman v United Kingdom Application No 27238/95 18 January 2001, a decision of the Grand Chamber of the European court. This was another case of enforcement proceedings against gypsies. Her appeal on ground (a) was dismissed by an inspector exercising the power to determine the appeal under Schedule 6. She did not appeal to the High Court and complained that the High Court would not have been entitled to determine the merits of her claim that she should have planning permission. The court stated briefly that, following the Bryan case, the scope of judicial review was sufficient to satisfy article 6.
122. My Lords, I conclude from this examination of the European cases on our planning law that, despite some understandable doubts on the part of some members of the Commission about the propriety of having the question of whether there has been a breach of planning control determined by anyone other than an independent and impartial tribunal, even this aspect of our planning system has survived scrutiny. As for decisions on questions of policy or expediency such as arise in these appeals, whether made by an inspector or the Secretary of State, there has never been a single voice in the Commission or the European court to suggest that our provisions for judicial review are inadequate to satisfy article 6."
"158. So far as the content of the dispute is concerned, the present point is that the Secretary of State should not be the decision-maker. The challenge is advanced substantially as one of principle, although in relation to the Huntingdonshire case a variety of particular points were raised regarding the interest or involvement in the Alconbury proposals on the part of various persons connected with the department or the Government. But I find it unnecessary to explore these in detail. The Secretary of State is admittedly not independent for the purposes of article 6(1). I do not consider that it can be decided at this stage whether the interest or involvement of these other persons is going to provide grounds for challenging the legality of the eventual decision. Grounds for challenge which are at present unpredictable may possibly arise in due course. As matters presently stand the issue is whether article 6(1) is necessarily breached because the decision is to be taken by the Secretary of State with the assistance of his department. The challenge is directed not against the individual but against the office which he holds. The question which arises is whether the Secretary of State or some person altogether unconnected with the Secretary of State should make the decision.
159. As I indicated at the outset, Parliament, democratically elected, has entrusted the making of planning decisions to local authorities and to the Secretary of State with a general power of supervision and control in the latter. Thereby it is intended that some overall coherence and uniformity in national planning can be achieved in the public interest and that major decisions can be taken by a minister answerable to Parliament. Planning matters are essentially matters of policy and expediency, not of law. They are primarily matters for the executive and not for the courts to determine. Moreover as matter of generality the right of access to a court is not absolute. Limitations may be imposed so long as they do not so restrict or reduce the access that the very essence of the right is impaired (Tinnelly & Sons Ltd v United Kingdom (1998) 27 EHRR 249, para 72). Moreover the limitation must pursue a legitimate aim and the relationship between the means employed and the aim sought to be achieved must be reasonably proportionate (Ashingdane v United Kingdom (1985) 7 EHRR 528). In the context of the present cases the aim of reserving to a minister answerable to Parliament the determination of cases which will often be of very considerable public interest and importance is plainly a legitimate one. In light of the considerations which I have already canvassed it seems to me that there exists a reasonable balance between the scope of matters left to his decision and the scope of the control possessed by the courts over the exercise of his discretionary power.
160. Accordingly as matters presently stand I find no evident incompatibility with article 6(1). That view seems to me to accord fully with the decisions of the European Court of Human Rights. A consideration of the cases on the specialised area of town and country planning to which I now turn suggests that the court has recognised the sufficiency of a limited appeal and the decisions fully support the view which I have expressed "
"Far from being independent of the executive, the Home Secretary and his junior ministers are important members of it. I need not linger on this point, since it is not controversial. Plainly, the Home Secretary is not independent of the executive and is not a tribunal."
i) Alconbury is itself strong authority that determination by the Secretary of State is compatible with Article 6. That authority is binding on this Court. But in any event I am not persuaded that such recent House of Lords authority should be departed from, and certainly not on the basis of Anderson which relates to a quite different statutory context and was also decided within a year of Alconbury;
ii) the recovery decision is not a consideration of the substantive merits of a planning appeal, but a procedural step- see R (Hadfield) v. Secretary of State for Transport, Local Government and the Regions  EWHC 1266 (Admin). The Court has stressed that any party with a meritorious case should not have any reasonable fears about the process: Hadfield, at , per Sullivan J as he then was ;
iii) the evidence shows that those appeals that have been determined by the SSCLG since the practice of recovery of all cases have not all been dismissed. Some have been allowed. There is in my judgment no evidence which tends to show that the SSCLG is or was predisposed to dismiss any or any particular appeals.
i) the allegation of excessive delay is not made out on the facts. In Ms Moore's case, the inquiry concluded on 19 February 2014. The Inspector's report has been received and is being actively considered. To date, there has been a period of nine months since the inquiry concluded. Had the Secretary of State not recovered jurisdiction, it would still have taken some time for the inspector to determine the appeal;
ii) in the context of civil proceedings, the reasonable time guarantee under Article 6 recognises "the importance of rendering justice without delays which might jeopardise its effectiveness and credibility": H v. France (1990) 12 EHRR 74. In determining whether a reasonable time has been passed, it is relevant to have regard to the complexity of the case, the applicant's conduct and the manner in which the matter was dealt with by the administrative and judicial authorities: Kφnig v. Germany (1978) 2 EHRR 170, at  (applied per Lord Hope in Magill, at );
iii) in neither Ms Moore's nor Mrs Coates' case, can it realistically be said that the period which has passed since the end of their appeal inquiry is unreasonable, particularly when it is considered that some of that time would have been inevitable even if the decision were taken by the inspector and were not recovered.
11 Allegations of bias: arguments discussions and conclusions
12 Allegations of abuse of power and irrationality
13 Allegations that the Defendant SSCLG acted in accordance with an undeclared policy, and contrary to his declared policy:
a. the Written Ministerial Statements to Parliament publicly represented that it was the Defendant's approach that he would not recover all gypsy and traveller appeals, but that a number of appeals would be recovered to test the policy;
b. in fact, the Defendant recovered all, or practically all, gypsy and traveller appeals.
c. the Defendant's witness, the Head of Planning Casework, expressly recognised that this practice was inconsistent with the publicly stated position;
d. as a matter of public law, it is unlawful to depart from published policy without articulating a good reason for doing so in the course of the decision making process. No such reasons were given by the Defendant;
e. further, as a matter of public law, it is unlawful to follow an unpublished policy or practice which is inconsistent with the published policy: Lumba v Secretary of State for the Home Department  1 AC 245, per Lord Dyson at . The Defendant's blanket approach of recovering Gypsy and Traveller appeals in the Green Belt amounted to an unwritten practice that was inconsistent with his unequivocal public representations as to his practice.
a. WMS1 did not necessarily mean that all Gypsy and Traveller Green Belt appeals would be recovered; but nor was that possibility precluded. If, as happened, the Secretary of State was of the view that all such appeals needed to be recovered, then he had discretion to do so. The WMS1 established the criterion for recovery namely, Gypsy and Traveller appeals in the Green Belt but set no limits on the level of recovery. Accordingly, there is no substance to the "blanket" argument. It is based on a misreading of WMS1.
b. Similarly, the argument based on R (Lumba) v. Secretary of State for the Home Department  UKSC 12,  1 AC 245 by the EHRC, and on which the Claimants now also seek to rely, is without merit because it is based on a misreading of WMS1. The Secretary of State did not maintain a secret and undisclosed policy on the level of recovery. WMS1 did not preclude him from recovering all Gypsy and Traveller Green Belt appeals.
ii) Discussion and conclusions
"For the avoidance of doubt, this does not mean that all such appeals will be recovered, but that the Secretary of State will likely recover a number of appeals in order to test the relevant policies at national level. The Secretary of State will apply this criteria" (sic) "for a period of 6 months, after which it will be reviewed. "
"20 Here too, there is little dispute between the parties. Mr Beloff QC rightly accepts as correct three propositions in relation to a policy. First, it must not be a blanket policy admitting of no possibility of exceptions. Secondly, if unpublished, it must not be inconsistent with any published policy. Thirdly, it should be published if it will inform discretionary decisions in respect of which the potential object of those decisions has a right to make representations."
"35 The individual has a basic public law right to have his or her case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute: see In re Findlay  AC 318, 338E. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it."
I do not regard that as inconsistent with WMS 2, albeit that WMS 2 did not suggest that that was sufficient reason of itself.
14 Conclusions on the merits
16 Orders and the exercise of the Court's discretion
a. an order quashing the decision to recover her appeal
b. an order prohibiting the Defendant from recovering it.
a. an order quashing the decision to recover her appeal
b. alternatively, an order requiring the Defendant to revoke his decision to recover it.
Note 1 Figures given in submission to Minister on 3rd June 2013 at para 10. [Back] Note 2 I set out the details of that evidence below [Back] Note 3 The disadvantages are also faced by non-ethnic gypsies and travellers, but this claim is focussed on ethnic Gypsies and Travellers. [Back] Note 4 Gypsies and Travellers: simple solutions for living together (EHRC, March 2009), p5, and Inequalities experienced by Gypsy and Traveller communities: A review (EHRC, Winter 2009), chapter 2.1. [Back] Note 5 Both figures (28 and 33) appear in the DCLG answer to the FOI request. Other evidence shows that all were recovered. [Back] Note 6 21.3% as against 0.4% [Back] Note 7 100% as against 0.8% [Back]
Note 1 Figures given in submission to Minister on 3rd June 2013 at para 10. [Back]
Note 2 I set out the details of that evidence below [Back]
Note 3 The disadvantages are also faced by non-ethnic gypsies and travellers, but this claim is focussed on ethnic Gypsies and Travellers. [Back]
Note 4 Gypsies and Travellers: simple solutions for living together (EHRC, March 2009), p5, and Inequalities experienced by Gypsy and Traveller communities: A review (EHRC, Winter 2009), chapter 2.1. [Back]
Note 5 Both figures (28 and 33) appear in the DCLG answer to the FOI request. Other evidence shows that all were recovered. [Back]
Note 6 21.3% as against 0.4% [Back]
Note 7 100% as against 0.8% [Back]