Discrimination in the green belt

On 21 January 2015,
Mr Justice Gilbart found that the Rt Hon Eric Pickles MP, the minister responsible for integration
of minorities, had unlawfully discriminated against gypsies and travellers.

In Moore and Coates v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin), the claimants were each Romany gypsies who had applied for, and been refused, permission to pitch a single mobile home on two separate sites in the green belt.

Planning permission

Planning permission is required for building, engineering,
or similar operations on land,
or making material changes in
the use of land. Where planning permission is refused by a local authority, the applicant has a right to appeal to the Secretary of State pursuant to section
78 of the Town and Country Planning Act 1990. Schedule 6 of the Act provides for persons to be appointed by the Secretary of State to hear and determine appeals in his stead. Of around 12,000 annual planning appeals, the overwhelming majority
(and 95 per cent of residential
appeals in the green belt) are determined by the Planning Inspectorate. Under paragraph 3 of schedule 6, the Secretary of State retains a discretion ‘if he thinks fit’ to direct that an appeal which would otherwise be determined by an appointed person be recovered for his personal determination.

The Secretary of State’s published policy criteria for recovering appeals had not mentioned traveller sites specifically, but one criterion was ‘significant development
in the green belt’. A statement
was made to parliament that ministers would ‘continue to consider for recovery appeals involving traveller sites in the green belt’. In practice, from 2013 the Department for Communities and Local Government came to operate a policy whereby all such appeals were recovered. The purpose was that the resultant decisions would give guidance to local authorities about how to apply national policies to similar cases. The result was that a backlog developed because the central civil servants were unable to process the appeals.

Unpublished policy

The claimants had been waiting 14 and 25 months respectively for a decision. Supported by the Equality and Human Rights Commission (intervening), they argued that this blanket policy amounted to unlawful racial discrimination and a denial of their right to ‘a fair and public hearing within a reasonable time’, pursuant to article 6 of the European Convention on Human Rights (ECHR). They also argued that it was unlawful to operate an unpublished policy. In response to the judicial review, the department had changed its practice in September 2014 to recovering a quota of 75 per cent of Green Belt traveller site cases, which the court also considered.

Gilbart J found that while only large housing cases of more than 85 homes had been recovered in the relevant period, applications for even a single mobile home
by gypsies had been recovered.
He held that the Secretary
of State had unlawfully discriminated against a racial group, contrary to section 19
of the Equality Act 2010, by adopting a policy that disproportionately subjected ethnic gypsy applicants for permission to a detriment without proportionate justification: “the appeals were recovered not because of their merits but because they were cases of travellers’ pitches in the Green Belt”. In his view, the Secretary of State had failed to prove that guidance could not be given with less delay by selecting a few representative cases to determine or by issuing a further policy statement. He also found that the subsequent quota was arbitrary. He determined that the Secretary of State had failed to make a structured assessment of the impact of the recovery policy on gypsies, contrary to section 149 of the Act. He found a breach of article 6 of the ECHR because the time taken to issue a decision was unconnected to the merits of the individual cases and was unwarranted, arising purely as a consequence of the operation of the unpublished policy. Finally, he held that while there was no requirement to publish any policy on recoveries, the unpublished policy was unlawful insofar as it contradicted the published policy to consider appeals for recovery on their merits against specified
criteria. SJ

 

KEY POINTS   There must be a suitable structured and focused consideration of impacts on equality of opportunities before a procedural policy is adopted. If a choice exists between a more and a less discriminatory approach, there must be ‘a good proportionate reason’ for the policy maker to choose the former over the latter. Any administrative policy must be published if it will inform discretionary decisions in respect of which there is a right to make representations. It is unlawful to operate an unpublished policy or practice which is inconsistent with a published policy.

 

David Graham is a barrister specialising in public law at Francis Taylor Building