Moore and Coates v Secretary of State for Communities and Local Government and London Borough of Bromley, Dartford Borough Council  EWHC 4
There is an increasingly strong body of Human Rights law which emerges from time to time in the context of environmental law.
The connection between human rights and the environment is now established in the UNECE Aarhus Convention which deals with access to information, public participation and access to justice in the environmental sphere.
Sometimes, principles enshrined in the European Convention on Human Rights (ECHR), implemented into UK law through the Human Rights Act 1998 (HRA), are engaged where there is some form of harm or damage associated with, for instance, environmental nuisance caused by the unreasonable interference with amenity even where those claiming compensation may have no proprietary rights (see for instance Dobson v Thames Water Utilities EWCA Civ 28).
In the public law and planning sphere, convention rights have weight both for those applying for permission for development and those parties – such as objectors - who feel their interests are affected by planning decisions.
Other sources of rights law include those relating to “protected characteristics” now found collectively in the Equality Act 2010 (EA) and which stand to be considered in the context of planning decisions.
It would seem that, however, there is also a category of case where planning policies which exist to protect the environment are pitched against rights established under the auspices of the HRA and the EA.
Moore and Coates v SSCLG
The recent decision in Moore saw Mr Justice Gilbart assessing the way in which policy on Green Belt interacts with policy decisions on travellers and gypsies.
Two Romany Gypsies - both disabled and both with disabled children - had applied for planning permission for single-pitch developments on their own land for caravans within the Green Belt. Both were refused permission by their local planning authorities. They appealed but the Secretary of State for Communities and Local Government (SSCLG) “recovered” the cases so that he could then make the final decision himself. He then procrastinated in reaching a final decision by up to a year.
Both claimants then launched judicial review proceedings supported by the Equality and Human Rights Commission (EHRC).
They argued that the secretary of state had breached provisions of the EA, in a way which had led to unlawful indirect discrimination contrary to s 19, and that he had also acted in breach of the Public Sector Equality Duty (PSED) imposed on him by s 149 of the EA.
Arguments were also raised that SSCLG acted contrary to his declared policy on the recovery of jurisdiction of appeals without giving reasons for doing so, or had adopted a policy which was undisclosed and conflicted with his declared policy. The Claimants also argued that the SSCLG had acted in breach of Articles 6 and 8 of the ECHR, had acted irrationally, in abuse of his powers and with bias because the claimants were travellers.
The SSCLG countered that there had been no breach of the EA or HRA; the SSCLG was entitled to recover appeals in the way and to the extent that he did, as an exercise of his powers and discretion as Secretary of State.
Background - Process
Under s 78 of the Town and Country Planning Act 1990, if planning permission is refused, the applicant can appeal to the SSCLG which means that his case will be considered in practice by a planning inspector.
However, the SSCLG has the power under paragraph 3 of Schedule 6 of the Act to direct that an appeal which would otherwise be determined by an Inspector should be “recovered” and determined by him.
If that path is followed, then the inspector – rather than making the decision him/herself - will write a report which sets out his own conclusions and recommendations. The SSCLG then issues a decision letter.
In 2008 the last government produced a policy which listed particular circumstances in which appeals would be recovered. This policy on the recovery of appeals made no specific reference to travellers’ sites. In July 2013, the written ministerial statement (WMS1) from the Local Government Minister stated that in the case of “traveller sites” the SSCLG was “revising the recovery criteria issued on 30 June 2008 and would consider for recovery appeals involving traveller sites in the Green Belt.”
The National Planning Policy Framework (NPPF) was published by the SSCLG on 27th March 2012. The policy declares at paragraph 87 that “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.”
Paragraph 88 of the NPPF dictates that “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.”
The “Planning Policy For Traveller Sites” (“PPTS”) was published by the SSCLG on the same date and requires that it be read in terms of the NPPF
The effect of the policies is that traveller sites (temporary or permanent) in the Green Belt are inappropriate development – so very special circumstances need to be demonstrated in order that permission be given.
Of course, traveller site policy does not impose a prohibition on such sites being located in the Green Belt. But in 2013, the SSCLG’s policy began to impose new checks on what he would recover from the planning inspector through a series of two written ministerial statements.
First Written Ministerial Statement
In July 2013, WMS 1 declared that:
“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 for a period of 6 months, after which it will be reviewed.”
The effect of written ministerial statement was to revise the 2008 policy, and to “consider for recovery” appeals involving traveller sites in the green belt but without recovering all of them, and that a number would be recovered to enable a review to take place.
However, although at first SSCLG did not seek to recover all such appeals, he was doing so from the latter part of 2013, and did so until September 2014, when he reduced the percentage recovered to 75%. During that period, it came to light from evidence from the Head of Planning Casework in the Department of Communities and Local Government, that additional, unpublished, criteria were applied to such appeals.
So far as sites for travellers’ pitches in the Green Belt were concerned, evidence was provided to the court that before the WMS1, 21% of green belt traveller developments were recovered – but following the statement, that rose to 100%. Of the 53 appeals recovered following WMS 1, only one had been decided by the time that the six months review period (identified in WMS 1) had elapsed. Additionally, following publication of WS1, a traveller site appeal in the green belt was 125 times more likely to be recovered than the usual residential development appeal.
Second Written Ministerial Statement
In the second written ministerial statement (WMS 2) of January 2014, the minister wrote:
“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.”
All traveller appeals thereafter continued to be recovered. But although the written policy did not expressly state that all such appeals should be recovered, as Gilbart J commented, “in fact, the evidence before me was that the Planning Inspectorate was understanding instructions from Ministers to recover all appeals.”
By the time of the launch of the judicial review and, perhaps as a consequence, the Planning Inspectorate was told that the 100% figure should be reduced to 75% of traveller appeals.
The disparity between the treatment of other developments in green belt and those of other travellers was succinctly put by Gilbart J:
“The evidence before the court, which was unchallenged, showed that housing developments involving several houses were not being recovered and were being left to Inspectors to decide. The smallest number of houses on any of the housing appeals recovered in the period in question was 82. Thus, a traveller wanting to live on a pitch in the Green Belt, but not erect any buildings, could now expect that his or her case would be recovered, whereas a person proposing to build one or more dwellings would not. That was true even in cases where the application or permission would be temporary, so that not only would there be no permanent structures erected in the Green Belt, but the use would come to an end. One may contrast that temporary harm to the openness of the Green Belt with that caused by the erection of new dwellings, or the continued residential use of a building which had hitherto been in, for example, agricultural use.”
The effect of such a disparity in treatment meant in practice that whereas the consideration of large housing developments which are “inappropriate development” in the Green Belt may be left to the scrutiny of the planning inspector, a decision on one pitch for a traveller would be recovered.
S 19 of the EA covers “Indirect Discrimination” where a provision, criterion or practice which is discriminatory in relation to a relevant “protected characteristic” putting that person or persons at a disadvantage compared with those who do not share the characteristic. The particular protected characteristic in these circumstances was race. That is because Romany Gypsies and Irish Travellers, each a distinct racial group, form a racial group for the purposes of s 9 of the Act.
Section 149 of the Act which sets out the “Public Sector Equality Duty” (PSED) requires, inter alia, that a public authority must, in the exercise of its functions, have due regard to the need to – eliminate discrimination and harassment; advance equality of opportunity and foster good relations.
Gilbart agreed with the claimants that the SSCLG has failed to show that the high level of recovery after the second WMS was a “proportionate way of achieving a legitimate objective” to get around the breach of s 19. He concluded, “The practice adopted since September 2014 has remained and is discriminatory within the meaning of s19 of the EA 2010.”
On whether the SSCLG had shown “due regard” to his PSED, Gilbart succinctly commented that, “on the evidence filed by the SSCLG, they had no regard at all.”
Articles 6 And 8 Of ECHR
The claimants also claimed that their rights under Article 6 of the ECHR had been breached as they had not had a fair public hearing within a reasonable time period as the SSCLG had recovered the appeals to deal with himself – and then delayed in dealing with them.
They also argued that their rights under Article 8 (“Right to respect for private and family life”) had been breached.
However, approving the Defendant’s reliance on Alconbury Developments Ltd, Gilbart J commented that it was “strong authority that determination by the Secretary of State is compatible with Article 6” and that it was binding on the court.
Although holding that the process of recoveries in itself did not breach Article 6 with regard to fairness, he concluded that there had been a breach of the timing aspect of Article 6:
“To anyone with experience of development control and planning inquiries, it is remarkable that cases involving a modest amount of evidence, and typically taking two days at most, could then require consideration for in excess of 6 months, let alone the 10 months that has elapsed in Mrs Coates’ case. I recognise that Mrs Moore’s case has involved some complexities, but there is no evidence at all that it was anything but atypical. . . .It was not the issues raised by any of the cases which caused the delays but the Ministerial decision to recover them all for determination. . . .The pitches concerned (and certainly so in the Claimants’ cases) contain their homes where they live, or wish to live, with their children. The SSCLG has failed to show that the delays caused to the determination of the appeals was a proportionate response to the issue of giving the policy “steer.” It follows that the appeals have not been determined within a reasonable time.”
But with Article 8, Gilbart was more agnostic:
“I do not consider it adds anything to the discussion as such, save only that it confirms (should confirmation be required) that the effect on the home lives of the Claimants (and of other travellers affected) is part of the context for giving weight to the importance of determining appeals as promptly as one can.”
Commenting on the ECHR and Equality Act 2010 generally, he concluded:
“While I am satisfied that the challenges mounted on issues of bias, irrationality and abuse of power have failed, I have found that the challenges based on breaches of the Equality Act 2010 and of Article 6 of the European Convention of Human Rights have succeeded. Both are part of the law of England and Wales. These are not to be dismissed as technical breaches. Although the issue of unlawful discrimination was put before the Minister by his officials, no attempt was made by the Minister to follow the steps required of him by statute, nor was the regard required of him by s 149 of the Equality Act 2010 had to the matters set out there.”
Gilbart then went on to dismiss the arguments on bias, abuse of power and irrationality.
As for the undeclared policy, the SSCLG’s blanket approach of recovering Gypsy and Traveller appeals in the Green Belt, argued the claimants, amounted to an unwritten practice that was inconsistent with his unequivocal public representations as to his practice.
However, Gilbart J was not satisfied that this meant it was unlawful:
“Although I can understand why some may cavil at the use of an undisclosed policy, my task is to determine whether a decision made in its application is unlawful. It is not for this Court to determine whether it was appropriate for the SSCLG and his Minister to have acted on a policy which had not been disclosed to Parliament. That is a matter for Parliament, not this Court.”
The Application Of Policy
Putting it all together, he ruled that:
“What was unlawful was the application of the policies in WMS 1 and WMS 2 in such a way as to recover all traveller’s pitch appeals, which, due to the way the practice was approached, amounts to a breach of ss 19 and 149 of the 2010 Act. I have also found that the practice of recovering all appeals, or an arbitrary percentage thereof, was and is unlawful. The effect of the approach of the Secretary of State was also to breach Article 6 so far as Mrs Moore and Ms Coates are concerned.
“. . .But recovery of individual cases on their merits is not unlawful, and as indicated earlier, a properly considered decision within the parameters of the 2010 Act to recover a number of appeals would also not be unlawful.”
At the close of his judgment, Gilbart points to the possibility that there may be further challenges made by travellers where their appeals have been recovered:
“ If, as appears to be the case, the appeals were recovered not because of their merits but because they were cases of travellers’ pitches in the Green Belt, then the effect of the judgment will be to call into question the legality of many other recoveries. But it may be that when addressed properly, some of those appeals would have merited recovery anyway. No doubt sorting out which should or should not be recovered will involve some time and resources being expended, although it will no doubt be less than the time and cost spent in dealing with judicial review claims by many others should a review not be conducted.”
He ordered the quashing of the recovery of both appeals.
It comes as no surprise that the process based on the SSCLG’s policy has been declared to be in breach of the Equality Act and provisions of the ECHR. The judgment also is a reminder of how policies designed to protect the environment will, in their exercise, be subject to the overarching rights of individuals caught up in planning decisions.
There are now, as Gilbart J indicated, a number of traveller appeal cases which have been recovered by the SSCLG. That then leads to the question, were the decisions in each of these cases lawful? Gilbart seems to be inviting the SSCLG to review the cases to save the expense of defending judicial reviews. It remains to be seen how much litigation will follow.
Justin Neal, Irwin Mitchell
First appeared in Environmental Law Monthly – February edition. Reproduced with kind permission of the publisher.