COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
HHJ MOLE QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
SIR ROBIN AULD
| The Queen (on the application of Baker & Ors)
|Secretary of State for Communities and Local Government
London Borough of Bromley
Equality and Human Rights Commission
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Philip Coppel (instructed by Treasury Solicitor) for the First Defendant/Respondent
Robin Allen QC & Catherine Casserley for the Intervenor
Hearing dates: Wednesday 13 and Thursday 14 February 2008
Crown Copyright ©
Lord Justice Dyson :
"Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family's or dependants' educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling show people or circus people travelling together as such."
The Inspector's Decision
"All of the appellants take education seriously. They know that a settled base is the best way for their children to receive a good education. The education for Mr Baker's 4 sons (Appeal A) might be disrupted if they had to leave Waldens Farm. This would particularly apply to the education of the eldest boys, aged 12, 11 and 10. However, I note that their journeys to school are currently undertaken by bus or car, and this mobility could be to their advantage. None of the 9 children in Appeals B and C is more than 5 years old. To my mind, if they had to move from Waldens Farm, their education would not be significantly disrupted."
"26. There are 5 authorised sites in Bromley which have planning permission or Lawful Development Certificates (LDCs) for gypsy sites:
Star Lane in St Paul's Cray has 22 pitches. It has had no electricity since 2004 and is currently uninhabitable. There is no definite date for its re-opening. When it does re-open it is likely that the original occupants, English travellers, would all move back and the site would again be full. There is a long waiting list. The site is run by Novas Housing Association. Even if pitches became available, there is a long history of antagonism between English and Irish travellers. It would be difficult, if not dangerous, for the appellants, who are Irish travellers, to move there.
Old Maidstone Road has 12 pitches. It is rat-infested and currently under-occupied. The vacant plots have no water or electricity, and access to them is blocked by piles of rubbish. In common with the Star Lane site, the Old Maidstone Road site is run by Novas Housing Association. There is a long waiting list, and the site has the same problems of antagonism between English and Irish travellers as the Star Lane site.
The Chalk Pit, Maidstone Road, has a LDC for 25 pitches. The site is privately-owned, and is about half full.
King Henry's Drive, New Addington has a LDC for 11 pitches. The site is privately-owned.
No 148 Croyden Road, Keston is a small privately-owned site with 2 mobile homes and 2 touring caravans.
27. In my view, the sub-standard facilities and the cultural clashes at the Star Lane and Old Maidstone Road sites would not be impossible to resolve, and are therefore unlikely to be permanent. However, I consider that the 3 privately-owned sites listed above unlikely to be available to the appellants; the owners would limit occupation to their own friends and family.
28. The adjoining London Boroughs of Bexley, Croyden and Greenwich have a total of over 70 pitches on sites that are not privately-owned. A letter from nearby Bexley Council says that there are no vacancies on its Council-owned sites but, encouragingly, there are no names on the waiting list. However, none of the appellants has put their name down. Indeed, the only appellant on a waiting list is Pamela Maughan (Appeal B) who has been on a waiting list for a site near Heathrow for about 4 years."
"It is fair to say that the most likely short-term option for all the appellants, if their appeals are dismissed, would be camping on the side of the road or in other unauthorised locations. If they do not leave Waldens Farm, there is every chance that the young mothers in Appeals B and C could end up in prison for a short while. There would undoubtedly be hardship. However, interference with home and family life, and the right to an education, need to be balanced against the protection of the environment. The fundamental aim of Green Belt policy is to keep the Green belt permanently open. This is a matter of public interest, and a legitimate aim. Taking everything into account, I consider that dismissal of the appeals is the only way that this legitimate aim can be adequately safeguarded. It is a necessary and proportionate response, and one that could not result in a violation of the appellants' rights under Article 8 and Article 2 of the European Convention on Human Rights."
"33. After careful thought, I have decided that the considerations in favour of the appellants do not clearly outweigh the harm to the Green Belt and the harm to openness, and therefore very special circumstances do not exist. The main factor that has led me to this view is the absence of any critical work-related, health-related or family-related need for any of the appellants to be at Waldens Farm."
"36. I have considered the possibility of granting temporary planning permissions. A period of 2 years was suggested in respect of Appeal A, and 5 years in respect of Appeals B and C. Circular 01/2006 does not over-rule the provisions about temporary planning permission in Circular 11/95. Paragraph 110 of that Circular makes it clear that temporary planning permissions may be justified where it is expected that the planning circumstances will change in a particular way at the end of a fixed period. There is no certainty about when or if the planning circumstances in Bromley will change. It is not known how long it will take to sort out the problems at the Star Lane and Old Maidstone Road sites. Nor is it known how long it will be before the GLA specifies pitch numbers for each London Borough. It may be that the GLA decides that no more sites are needed in Bromley. On the other hand, if Bromley is required to provide additional sites, this could take several years to achieve; particularly if changes had to be made to the Green Belt boundary.
37. I note the advice in Circular 01/2006, relating to transitional arrangements. It favours the early preparation of site-specific DPDs if there is an urgent need for more gypsy sites. Bromley, however, is engaged in the early preparation of a criteria-based policy within its Housing DPD, in order to accord with policy 3A.11 in the London Plan.
38. I am aware that temporary planning permissions have previously been granted for the sites in Appeals A, B and C. But these decisions were made on the basis of very special circumstances, particular to the appellants at that time. I do not feel unduly constrained by them. I am also mindful of the fact that the temporary permissions in 2003 appear to have been taken as a green light for further encampments at Waldens Farm. There is nothing to suggest that the same would not happen again, thereby undermining the Council's continued efforts to keep Waldens Farm free of inappropriate development.
39. Last but not least, paragraph 109 of Circular 11/95 makes it clear that if the damage to amenity cannot be accepted, then the only course open is to refuse permission. I have already decided that the damage to the openness of the Green Belt cannot be accepted.
40. In the light of the above, I have decided that temporary planning permissions would not be acceptable for these appeals."
The relevant statutory provisions
"(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action "
Other than these, the validity of any decision on an appeal under section 78 may not be challenged in any legal proceedings: see section 284(1)(f) and (3)(b). It is common ground that the permissible grounds of challenge are analogous to the permissible grounds of challenge to an administrative decision by way of judicial review proceedings.
"71(1) Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need
(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good race relations between persons of different racial groups.
(2) The Secretary of State may by order impose, on such persons falling within Schedule 1A as he considers appropriate, such duties as he considers appropriate for the purpose of ensuring the better performance by those persons of their duties under subsection (1).
71C(1) The Commission may issue codes of practice containing such practical guidance as the Commission thinks fit in relation to the performance by persons of duties imposed on them by virtue of subsections (1) and (2) of section 71.
(11) A failure on the part of any person to observe any provision of a code of practice shall not of itself render that person liable to any proceedings; but any code of practice issued under this section shall be admissible in evidence in any legal proceedings, and if any provision of such a code appears to the court or tribunal concerned to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.
(12) Without prejudice to subsection (1), a code of practice issued under this section may include such practical guidance as the Commission think fit as to what steps it is reasonably practicable for persons to take for the purpose of preventing their staff from doing in the course of their duties acts made unlawful by this Act."
Code of Practice
"3.2 Four principles should govern public authorities' efforts to meet their duty to promote race equality:
(a) promoting race equality is obligatory for all public authorities listed in schedule 1A of the Act.
(b) Public authorities must meet the duty to promote race equality in all relevant functions.
(c) The weight to be given to race equality should be proportionate to its relevance.
(d) The elements of the duty are complementary (which means they are all necessary to meet the whole duty).
3.16 To assess the effects of a policy, or the way a function is being carried out, public authorities could ask themselves the following questions.
a. Could the policy or the way the function is carried out have an adverse impact on equality of opportunity for some racial groups? In other words, does it put some racial groups at a disadvantage?
b. Could the policy or the way the function is carried out have an adverse impact on relations between different racial groups?
c. Is the adverse impact, if any, unavoidable? Could it be considered to be unlawful racial discrimination? Can it be justified by the aims and importance of the policy or function? Are there other ways in which the authority's aims can be achieved without causing an adverse impact on some racial groups?
d. Could the adverse impact be reduced by taking particular measures?
e. Is further research or consultation necessary? Would this research be proportionate to the importance of the policy or function? Is it likely to lead to a different outcome?"
"2. The Government is committed to ensuring that members of the gypsy and traveller communities should have the same rights and responsibilities as every other citizen. This Circular replaces Circular 1/94, Gypsy Sites and Planning and provides updated guidance on the planning aspects of finding sites for gypsies and travellers and how local authorities and gypsies and travellers can work together to achieve that aim. The policies in this Circular apply throughout England.
5. Gypsies and Travellers are believed to experience the worst health and education status of any disadvantaged group in England. Research has consistently confirmed the link between the lack of good quality sites for gypsies and travellers and poor health and education. This circular should enhance the health and education outcomes of gypsies and travellers.
11. This Circular applies equally to the development of public sites by local authorities or registered social landlords (RSLs), to applications for planning permission from gypsies and travellers themselves or from others wishing to develop land for use as a gypsy and traveller caravan site. It applies regardless of whether the site is for residential or transit use, and whatever the expected life of the site itself.
12. The Circular comes into effect immediately. Its main intentions are;
a) to create and support sustainable, respectful, and inclusive communities where gypsies and travellers have fair access to suitable accommodation, education, health and welfare provision; where there is mutual respect and consideration between all communities for the rights and responsibilities of each community and individual; and where there is respect between individuals and communities towards the environments in which they live and work;
b) to reduce the number of unauthorised encampments and developments and the conflict and controversy they cause and to make enforcement more effective where local authorities have complied with the guidance in this Circular;
c) to increase significantly the number of gypsy and traveller sites in appropriate locations with planning permission in order to address under-provision over the next 3 5 years;
d) to recognise, protect and facilitate the traditional travelling way of life of gypsies and travellers, whilst respecting the interests of the settled community;
e) to underline the importance of assessing needs at regional and sub-regional level and for local authorities to develop strategies to ensure that needs are dealt with fairly and effectively;
f) to identify and make provision for the resultant land and accommodation requirements;
g) to ensure that DPDs include fair, realistic and inclusive policies and to ensure identified need is dealt with fairly and effectively;
h) to promote more private gypsy and traveller site provision in appropriate locations through the planning system, while recognising that there will always be those who cannot provide their own sites; and
i) to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to.
45. Advice on the use of temporary permissions is contained in paragraphs 108 113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.
49. There is a general presumption against inappropriate development within Green Belts. New gypsy and traveller sites in the Green Belt are normally inappropriate development, as defined in Planning Policy Guidance 2: 'Green Belts' (PPG2). National planning policy on Green Belts applies equally to applications for planning permission from gypsies and travellers, and the settled population. Alternatives should be explored before Green Belt locations are considered. Pressure for development of sites on Green Belt land can usually be avoided if the local planning authority allocates sufficient sites elsewhere in its area, in its LDF, to meet identified need. Criteria-based policies in DPDs for the location of gypsy and traveller sites (see paragraphs 31 and 32 above) should not depart from national planning policy as set out in PPG2.
50. The presence of Green Belt will constrain and limit opportunities for identifying gypsy and traveller sites in some areas .
71. Section 19A of the Race Relations Act 1976 (RRA 1976) prohibits racial discrimination by planning authorities in carrying out their planning functions. In addition, the majority of public authorities, including local authorities, have a general duty under the RRA 1976 as amended by the Race Relations (Amendment) Act 2000 to actively seek to eliminate unlawful discrimination and to promote equality of opportunity and good race relations in all they do. The duty on local authorities to actively seek to eliminate unlawful discrimination, and promote good race relations does not give gypsies and travellers a right to establish sites in contravention of planning control. In line with their race equality scheme (legally required under the RRA 1976 (Statutory Duties) Order 2001) local authorities should assess which of their functions are relevant to race equality and monitor these functions and policies to see how they impact on different racial groups. The SCI is particularly important in this regard.
72. When policies are changed or new ones introduced, authorities should assess and consult on their likely impact, and where an adverse impact is identified which cannot be justified, changes should be made. It is particularly important that authorities consider all the racial groups served by the authority in order to assess the impact of their policies on those groups. Romany Gypsies and Irish Travellers have been recognised by the courts as being distinct ethnic groups covered by the RRA 1976. Under the general duty mentioned above, there is a requirement that local authorities seek to promote good race relations between Gypsies and Travellers and the settled community. This is important in the context of gypsy and traveller site planning."
"3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.
3.3. Green Belt policies in development plans should ensure that any planning applications for inappropriate development would not be in accord with the plan. These exceptional cases would thus be treated as departures from the development plan, to be referred to the Secretary of State under the Town and Country Planning (Development Plans and Consultation) Directions 1992 (see DOE Circular 19/92)."
The Grounds of Appeal
"(1) In breach of section 71(1)(b) of the RRA, the Inspector failed to have due regard to the need to promote equality of opportunity between persons of different racial groups ("the race relations issue");
(2) in carrying out the balancing exercise that she carried out at paras 32 and 33 of the decision letter, the Inspector failed to have regard to the highly disruptive effect that a refusal of planning permission would have on the education of the children of the Baker family ("the Baker education issue"); and
(3) The Inspector erred by (i) interchanging the question of the appellants' need to live in an area with their need to live on the particular appeal sites and (ii) imposing a requirement upon them to show a special need to live on the appeal sites ("the location issue").
The race relations issue
"I recognise that, in addition to the considerations flowing from ordinary gypsy policy, there is a situation in Bromley in which there is not equality of opportunity for Irish travellers. I am under a duty to have due regard to the need to promote such opportunity. I must, therefore, give proportionate weight to that need".
"I do not accept the submission made by Mr Bird that s71 was concerned with outcomes; ultimately of course it is aimed at affecting the way in which bodies act. But it does so through the requirement that a process of consideration, a thought process, be undertaken at the time when decisions which could have an impact on racial grounds or on race relations, to put it broadly, are being taken. That process should cover the three aspects identified in the section. However, that process can be carried out without the section being referred to provided that the aspects to which it is addressed are considered, and due regard is paid to them..."
The Baker education issue
The location issue
"That is clearly too narrow an approach, insofar as it appears to confine attention to the particular planning district. Indeed the Judge went on (para 33) to accept "that availability outside the Green Belt and outside the district in which the application is made" may also be relevant.
In any event, the availability of alternative sites in a particular area is only logically relevant, once it is established that there are special circumstances which require a site in that area, and that those circumstances are in themselves sufficiently compelling to overcome Green Belt policy. Mr Simmons failed at the first hurdle, since he failed to establish a special requirement to be located in the Sevenoaks district area. But even if he had been able to make such a case, based on a strong personal need, and that there were no viable alternative sites, it would not follow that as matter of policy the Secretary of State would be bound to regard it as a sufficient reason to justify the grant of permission."
"The correct approach, which is the one, it seems to me, the inspector follows, is simply that it is for the applicant to establish very special circumstances that override Green Belt considerations. A need to be on or near a particular site may be one of such very special circumstance. If the applicant can show a special requirement to be in a particular area, his or her claim of need may be countered by the suggestion that there is somewhere else reasonably close by to which he or she could go. For that reason it would be, if not necessary, at least wise for such an applicant to seek to demonstrate not only a special need to be in the area but also that there is nowhere else in the area other than the site in respect of which he is applying available to him. If such an applicant succeeds in that it may well amount to a very special circumstance. That, as I read Lord Justice Carnwath, is simply putting what he says in rather less elegant English."
Sir Robin Auld:
Lord Justice May: