QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| McCarthy; Culligan; Coyle; Taylor & Others
|- and -
|Basildon District Council
|- and -
|Equality & Human Rights Commission
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190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr David Watkinson (instructed by South West Law) for the Claimants in 1592/2006 and (instructed by Bramwell, Browne, Odedra) for the Claimants in 6082/2007
Mr David Elvin, Q.C., Mr Paul Epstein, Q.C. & Mr Reuben Taylor (instructed by the Solicitor to the Council) for the Defendant
Mr Robin Allen, Q.C. & Mr Marc Willers (instructed by the Legal Officer to the EHRC) for the Intervener
Hearing dates: 11 - 14 February 2008
Crown Copyright ©
Mr Justice COLLINS :
"(a) persons with a cultural tradition of nomadism or of living in a caravan; and
(b) all other persons of a nomadic habit of life, whatever their race or origin, including
(i) such persons who, on the 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; and
(ii) members of an organised group of travelling show people or circus people (whether or not travelling together as such)."
With the exception of 2(b)(ii), which is in any event immaterial in these claims, the definition follows essentially, albeit in somewhat greater detail, that which applied in the Caravan Sites Act 1968 (now repealed). There is no doubt that the claimants are all to be regarded as Gypsies or Travellers and, as Irish Travellers, are a particular racial group and so covered by the Race Relations Act 1976.
"4. Creating and sustaining strong communities, for the benefit of all members of society including the Gypsy and Traveller community, is at the heart of the Government's respect agenda. These communities will depend ultimately on a shared commitment to a common set of values, clear rules and a willingness for people to act together to resolve differences. They will also require effective enforcement action to tackle the poor behaviour of some individuals and families. We recognise the conflict and distress associated with unauthorised encampments, and the anti-social behaviour that sometimes accompanies such sites. This Circular will help to promote good community relations at the local level, and avoid the conflict and controversy associated with unauthorised developments and encampments.
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."
It, together with the duties imposed by the Housing Act 2004, would require local authorities to take a strategic approach. Authorities have to produce an assessment of Gypsy and Traveller accommodation (GTAA). In the new planning system set up by the 2004 Planning and Compulsory Purchase Act, the information obtained in the GTAA will be fed into the Regional Spatial Strategy (RSS) and will be a key component in the overall assessment of need which informs housing policies in the RSS. The RSS revision should identify the number of pitches required (but not their location) for each local planning authority in the light of the GTAAs and a strategic view of the needs across the region, which for the purposes of these cases extends over the East of England and involves the need for cooperation by a number of local planning authorities within the region.
"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 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, while 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 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."
Paragraph 18 provides:-
"There is a need to provide sites, including transit sites, in locations that meet the current working patterns of Gypsies and Travellers. In view of the changes in their work patterns, these may not be the same areas they have located in or frequented in the past. This needs to be balanced with the responsibility of Gypsies and Travellers to respect the planning system."
The Council first became aware of unauthorised use in late 2001, since when additional families have taken up residence. In April 2002, a number of enforcement notices were served. A number of planning applications were lodged. Overall, there have been nine planning applications and ten enforcement notices. Appeals were lodged against all the enforcement notices and eight of the nine refusals of planning permission. All appeals were refused following three planning enquiries leading to two decisions by the Secretary of State and one by an inspector. The first enforcement appeal led to a decision by the Secretary of State on 13 May 2003 by which he granted a period of 2 years for compliance. He observed in paragraph 23:-
" the shortage of authorised sites and the personal circumstances of the appellants are material considerations which weigh in favour of the proposals, but these need to be balanced against the harm to the Green Belt and other objections to the proposal in terms of highway safety and regarding the impact on residential amenity . The considerations in favour of the proposal do not amount to very special circumstances that would justify allowing inappropriate development in the Green Belt."
There is no question and the claimants' counsel do not dispute that what they have done amounts to inappropriate development in the Green Belt so that planning permission can only be granted if they can show that there are very special circumstances. It is accepted and the planning and enforcement decisions confirm that the individual circumstances of the claimants are capable of amounting to very special circumstances provided that those circumstances clearly outweigh the damage done to the Green Belt by the development and any other harm. Apart from the harm to the Green Belt, there were serious highway safety objections to the Dale Farm site because of the need to use a narrow country road for access. The Council's original decision to take enforcement action under s.178 was confirmed in January 2006 and again on 13 December 2007. In the meantime, the claimants remained on the land in breach of the enforcement notices and the criminal law. The extension of 2 years was intended to give them an opportunity to find somewhere else to go, but, rather than take advantage of the extra time, it was used to consolidate their use of the site. However, there was nowhere in the district or indeed in the region where they could lawfully reside in their caravans.
Although in the Green Belt, both Sites A and B were developed without planning permission for a variety of industrial uses. The unauthorised uses were enforced against and as a result ceased in the mid 1990s. In 2003, the Council became aware of the unauthorised use of Site B by Travellers.
Two enforcement notices came into effect in October 2003 and were not appealed. They were not complied with and the site was divided into 7 plots which led to five more enforcement notices in 2004. Appeals were dismissed following a public enquiry in the summer of 2005, but the time for compliance was extended to December 2006. On 15 December 2006, a planning application was lodged seeking permission to retain the seven pitches. Permission has been refused by the Council. An appeal has been lodged but no enquiry has yet been held.
In the case of Site A, 9 enforcement notices were served in 2004 and appeals against them were dismissed in December 2005, but time for compliance was extended to December 2006. In the meantime, applications for planning permission covering not only Site A but also part of the horseshoe land had been made and refused by the Council. The refusal was upheld by the Secretary of State on 22 February 2007 following a public enquiry in August 2006. In her decision letter, the Secretary of State agreed with the inspector that, although there were family ties with occupants of the adjacent authorised sites and the appellants had put down some roots and might have a case for staying in the locality, there was no compelling social need for the appellants to live next to the authorised site. There were also no economic, educational or healthcare needs which required the appellants to live at the appeal site.
She considered that the absence of alternative sites, the disruption to the children's educational needs and particular health care problems should carry significant weight. In Paragraph 35 she said this:-
" The Secretary of State agrees with the Inspector that it is reasonable to assume that if the appeals are dismissed then eviction will follow and this would result in interference with the appellants' home and family life. However, the Secretary of State also agrees with the Inspector that the interference has to be balanced against the harm to the Green Belt and to highway safety caused by the developments and she further considers that the public interest in pursuing the legitimate aims of Article 8 must include the protection of the environment."
It followed that the dismissal of the appeals was, in her view, a necessary and proportionate response which would not result in a violation of the appellants' rights under Article 8 of the ECHR.
A further appeal against the refusal of temporary permission (3 years was requested) was considered at a public inquiry in October 2007 and on 21 January 2008 the Secretary of State dismissed the appeals.
In Paragraphs 14 to 16 of the decision letter she said this:-
"Need for Sites
14. The Secretary of State considers that the exact extent of the local needs is not known, and that there is no certainty at this stage that Basildon District Council will in the future be required to provide more sites. The district level allocation of pitch numbers will not be finalised until the East of England single issue review is complete, and work on this is currently at an early stage. However, she does consider that a current need in this area has been demonstrated. Circular 01/06 makes it clear that factors such as the presence of significant numbers of unauthorised developments can provide evidence of need (Paragraph 43).
15. For the reasons given at IR139 the Secretary of State agrees with the Inspector that the need of these appellants for a site is acute, as they are under threat of a forced eviction, but that no functional need has been established to demonstrate that these appellants need to live on this site. For the reasons given at IR140, the Secretary of State agrees that the lack of an agreed quantitative assessment and the lengthy timescale weigh in favour of the appellants.
16. For the reasons given at IR141-143, the Secretary of State considers that the lack of alternative sites is a significant factor in favour of the appeal."
She considered the health and educational needs of the families and accepted the inspector's conclusion that the severity of any illnesses was the relevant factor but that none of the appellants had illnesses which required them to live on the sites and there was no evidence to suggest that only a site in Basildon or in the Green Belt could enable them to receive proper health care. The same applied to the childrens' educational needs. She recognised the absence of acceptable alternative sites in the vicinity, but took the view that the extent of the Green Belt and the consequent potential difficulty in finding acceptable locations for sites in the vicinity did not make the particular Green Belt site any more acceptable.
I have dwelt at some length on the planning history of the sites covered by this claim because the reasoning which led the Secretary of State to reject the appeals against refusals of planning permission or enforcement is, as will be seen, similar in the other cases.
There has been unauthorised development of the sites since 1997 and enforcement action has been taken. An injunction was granted in December 2001 requiring the removal of hard standing and caravans. It was not complied with. Various applications for planning permission were refused and finally appeals were dismissed in July 2003. However, not only was there a failure to bring the unlawful development to an end but further such development took place. Enforcement notices were served; appeals were dismissed in December 2004, but the appellants were given until December 2005 to comply. Enforcement action pursuant to s.178 was decided on in January 2006. The claim was lodged on 22 February 2006. In the meantime applications for planning permission for 7 plots were made in March 2006 and refused by the Council in August. An appeal was dismissed by an inspector in April 2007. There is a pending claim under s.288 of the 1990 Act against that decision.
The inspector decided that the development detracted from the character and appearance of the area. It had an unfortunate harsh look and was harmfully out of keeping: no landscaping (which was absent) could cover the defects. It eroded the openness of the Green Belt. The inspector recorded in Paragraph 25:-
" I have also taken into account the fact that there is an extant enforcement notice in respect of the appeal sites; the period for compliance has expired. Only a judicial review [i.e. this claim] has prevented the Council from taking direct action on those plots; it has already taken such action in respect of the land to the south. The probability, therefore, is that if the appeal is not successful, the appellants will be forced to vacate the sites and will become homeless. The Council is unable to offer alternative accommodation; there are no vacant sites in the vicinity. The probability, therefore, is that they will be forced to return to roadside camping. If they remain in this District, the probability is that such camping would be in the Green Belt."
The inspector went on to consider the individual circumstances of each appellant and their health and educational needs. However, his view was that those needs were not such as could in any case constitute the very special circumstances which were required to justify development which was so harmful to the Green Belt. The harm to the appellants was in his view proportionate and necessary in the circumstances and would not result in a violation of their rights under Articles 8 or 14 of the ECHR.
Unauthorised development of the land commenced in 2002. Enforcement notices were not complied with and further notices were issued in November 2004 against the change of use of the land which was then divided into 7 plots. Appeals were dismissed by the Secretary of State in February 2006 following a public inquiry. Enforcement action was approved in June 2007 whereafter the claim was lodged on 19 July 2007. In the meantime, appeals had been lodged against the Council's refusal in April 2007 to grant planning permission for the development. A public enquiry was held in December 2007 and the appeals were dismissed in January 2008. The land in question lay in a part of the Green Belt which was narrow and especially vulnerable and formed an important function in checking unrestricted sprawl of large built-up areas, namely Basildon and Wickford. Thus the harm to the Green Belt was severe and the personal circumstances of the appellants did not outweigh them. Further, the development had caused considerable visual harm to a substantial and prominent area of land and there were problems of noise generated by vehicles accessing the site. Significant weight should be attached to the reduced quality of life for local residents.
The inspector concluded, on the basis of information before him, that, planning circumstances were likely to change within Basildon within the next 3 to 4 years as Gypsy accommodation needs were finalised and additional Gypsy sites were identified. However, the harm that the appeal proposal caused to the Green Belt, to local character and residents' living conditions was unacceptable even on a temporary basis. Thus dismissal of the appeals was proportionate despite the effects on the appellants and their families.
"The Task Group discovered that the scale of the problem was small. About 75% of Gypsies and Travellers who live in caravans are on authorised sites, whilst the remainder only require about 4000 pitches, or less than one square mile of land across the country. We examined the Government's policy, which changed in 2004 in relation to site provision, and consider that if it is implemented with vigour by central and local government, there is a prospect that most of the £18m spent on enforcement could be saved, and the life chances of this most deprived ethnic minority group greatly enhanced."
"Temporary Planning Permission A Missed Opportunity?
"No report on site provision and enforcement could be complete without reference to what is probably the most infamous unauthorised site in the country Dale Farm in Basildon, Essex. While the scale of development at Dale Farm is far from typical, it provides a cautionary tale of how temporary planning permission can fail to address and indeed sometimes exacerbate fundamental problems with the supply of permanent accommodation for Gypsies and Travellers.
The site has a long and contentious planning history. Temporary permission was granted by the Secretary of State in 2005 with the intention that this would give the site residents and the local authority time to find a suitable alternative site. However, no such progress has been made, and the local authority has now received a homelessness application for the 400 people who claim that eviction from the site will leave them homeless. At the same time, opposition among parts of the settled community towards site residents has become ever fiercer, with parents from the settled community withdrawing their children from the school attended by children from Dale Farm, and the view regularly expressed in letters to the local press that Gypsies and Travellers living on the site are somehow 'above the law'.
No temporary permission was in fact granted, but the extension of time to comply with the enforcement notices had the same effect.
"152. The enforcement of criminal law is properly to be given very considerable weight in the decision as to the steps to be taken to enforce compliance with enforcement notices which have taken effect. The European Court of Human Rights recognised, for example in Chapman that the unlawful occupation of land was a factor telling strongly in favour of the proportionality of steps permitted by law to bring that occupation to an end. Where occupation is in breach of the criminal law, even more so will enforcement of the law be a proportionate step. Great, even decisive, weight can properly be given to the effective enforcement of the law, avoiding the law being set at nought and being seen to be flouted, suspended or dispensed with in favour of a particular group.
153. Gypsies have the opportunity for their special circumstances to be weighed at the planning merits stages and, where occupation of land for residential purposes is a criminal offence, the resolutions of planning merits, if ultimately favourable to them, should precede rather than follow the occupation of the land in breach of the criminal law. The courts have clearly set their face against treating the special circumstances of Gypsies as justifying breach of their orders and avoiding committal proceedings, as the decisions in South Cambridgeshire DC v Gammell and Mid Bedfordshire DC v Brown show."
Thus it was not in principle disproportionate to use s.178 instead of s.187B. Parliament had granted the power to enforce directly and the remedy of judicial review provided adequate protection. On a s.187B application, the court has an original and discretionary, not a supervisory jurisdiction: South Bucks DC v Porter  A.C. 558. The discretion is not absolute and must be exercised with due regard to the purpose for which it was bestowed, namely to restrain actual or threatened breaches of planning control. Lord Bingham at paragraph 18 cited extensively from the judgment of Simon Brown LJ in the Court of Appeal. Simon Brown LJ's conclusion was:-
"Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought here the safeguarding of the environment but also that it does not impose an excessive burden on the individual whose private interests here the Gypsy's private life and home and the retention of his ethnic identity are at stake."
"155. The breach of the criminal law involved here permits and even requires an approach to the proportionality of effective steps to procure compliance with the criminal law, which puts rather more weight on compliance with the criminal law than would be the case if the breach of planning control consisted of an unlawful failure to obtain planning permission for a material change of use, rather than the occupation of land in breach of the criminal law. This is particularly important where the circumstances upon which the claimants will rely when putting forward their case at the inquiry will include reliance on factors such as the stability of the children at school, which arise as a result of the occupation of their land in breach of the criminal law.
156. They may well have improved their case, and created circumstances more favourable to them through this breach of the criminal law. That can properly be seen as bringing the law into disrepute. The occupation of the land by the claimants, which underlines Article 8, has always been in breach of the criminal law in the first place, and it may be permissible to entertain some doubts about the extent to which such acts can generate rights to be respected. But in any event interference with them is justified by law and by the enforcement of the criminal law."
(1) Take no action. This would involve tolerating the site and leaving the enforcement notices on file with the possibility of action being taken later.
(2) Prosecution. The possibility of fines can be a means of achieving enforcement, but, as the report pointed out, it had not proved particularly effective in the past.
(4) Direct Action. I have put these together since the advice recorded the observations of Ouseley J.
(5) Compulsory Purchase. This would require a 'compelling case in the public interest'. The procedures would be protracted and expensive and 'unlikely to be approved since there were alternative means'.
In conclusion, the report said:-
"The key issue for members to weigh in the balancing exercise is whether the impact of taking action to secure compliance with the Enforcement Notices on the occupiers of the sites is such that the public interest in enforcing planning control be set aside in favour of allowing the unauthorised development to remain.
It is for Members to judge the weight that should be attached to each consideration. If they conclude that the circumstances of the occupiers and the hardship suffered if enforced against, are insufficient to outweigh the upholding of the Council's and national planning policies, then Members must consider what option to pursue to secure compliance with the enforcement notices."
"Basildon's only attraction is the availability and purchasability of cheap Green Belt land. The availability of cheap land is not a justification for considering the grant of temporary permissions in accordance with the transitional arrangements as set out in the Circular [sc.01/2006]."
The report states in Paragraph 5.14:-
"There is an urgent need to address the shortage of accommodation suitable for Gypsies and Travellers. This shortage of accommodation creates additional problems for the Gypsy and Traveller community in terms of access to health, education, employment and other opportunities. It can also create tensions over the use of pitches without planning permission. This is a national issue, and one that has been evident for some time, but is particularly pressing in the East of England."
"There is a significant demand for accommodation. Whether the demand is to be equated with 'need' depends upon whether (a) there is any functional requirement for the demand to be met in Basildon and (b) any functional need for the land to be within the Green Belt."
Presumably the reference to functional requirement is intended to mean that the need must be shown to be in the district of Basildon rather than somewhere else in the East of England because of some particular requirement for access to facilities or family ties or whatever. This seems to me to be a somewhat too narrow assessment of need. The absence of any sites in the vicinity meant, as the officers' report explained, that 'those removed from the site will have nowhere else to go in the vicinity' and so they would be compelled to resort to illegal camping. Thus Members should assume that:-
"if enforcement action is taken those required to leave the land will have to resort to camping on the roadside."
This would leave them vulnerable to further removal action and would produce an obvious serious disruption to their lives, in particular in access to schools and to healthcare. The absence of anywhere else to go does, as it seems to me, result in a need to have somewhere to live and that is material to whether they should be able to remain where they are for a temporary period until authorised sites are made available, whether or not within the Council's district. When the EERA report is added in, there may be a need for Basildon to provide further sites.
" it is likely that the first choice of Travellers, i.e. an alternative site, may not be available and suitable housing in the public and private sector may have to be made available. The caravans and 'demountables' along with other possessions that cannot be housed with the applicants will be the Council's responsibility to store for varying lengths of time depending on individual circumstances."
There may be argument whether bricks and mortar can be suitable.
"To accept that demand must be satisfied at the point at which it arises is overly simplistic, it will inevitably give rise to disproportionate site distribution and lead to overly large settlements that are unlikely to be sustainable. Accordingly the Council has not allowed any land to further Gypsy / Traveller site development ahead of the issue of the draft Gypsy / Traveller Single Issue Review RIS."
Since the adoption of the Review was timetabled for the Autumn of 2009, there could be no short term resolution of the problem. Thus, it was said, little weight could be attributed to the emerging policy guidance.
"Moreover, to accord to a Gypsy who has unlawfully established a caravan site at a particular place different treatment from that accorded to non-Gypsies who have established a caravan site at that place or from that accorded to any individual who has established a house in that particular place would raise substantial problems under Article 14 of the Convention."
Further, in Paragraphs 97 and 98 this is said:-
"97. It is important to appreciate that in principle Gypsies are at liberty to camp on any caravan site which has planning permission; there has been no suggestion that permissions exclude Gypsies as a group. They are not treated worse than any non-Gypsy who wants to live in a caravan and finds it disagreeable to live in a house. However, it appears from the material placed before the Court, including judgments of the English courts, that the provision of an adequate number of sites which the Gypsies find acceptable and on which they can lawfully place their caravans at a price which they can afford is something which has not been achieved.
98. The Court does not, however, accept the argument that, because statistically the number of Gypsies is greater than the number of places available in authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to protection on minorities, that Article 8 can be interpreted to involve such a far-reaching positive obligation of general social policy being imposed on States."
"The humanitarian considerations which might have supported another outcome at national level cannot be used as the basis of a finding by the Court which would be tantamount to exempting the applicant from the implementation of the national planning laws and obliging governments to ensure that every Gypsy family has available for its use accommodation appropriate to its needs. Furthermore, the effect of these decisions cannot on the facts of this case be regarded as disproportionate to the legitimate aim being pursued."
"Every body or other person specified in Schedule 1A [which includes in Paragraph 12 local authorities] 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 relations between persons of different racial groups."
"The assessments initial findings show that in particular in relation to PPG2 and PPG18 there is significant adverse impact on Gypsies and Travellers in their application of Green Belt policy and its enforcement. There is however no direct discrimination. Actions, which result in such adverse impact, are not unlawful if justified. For a decision to be justified it must correspond with a legitimate aim and be proportionate.
There is thus in the present case a conflict between the adverse impact on Gypsies and Travellers, and the requirements of planning control. Due regard must be paid to the need to eliminate unlawful discrimination and to promote equality of opportunity and good race relations when weighing these conflicting interests. The officers consider that there are legitimate aims in seeking to uphold planning policy, and given the legitimacy of such aims, enforcement action is proportionate. However, any enforcement should be carried out in an appropriate way that does not have the effect of damaging good race relations over and above the effect produced by the fact of enforcement."
"It should also have explained more clearly why in this particular case planning policy should be given greater weight than the need to promote good race relations, rather than merely stating that complying with planning policy per se was a legitimate aim."
Concern is expressed and followed in Mr Allen's submissions that due regard was not had within the meaning of s.71.
"I do not accept the submissions made by [counsel] that s.71 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."
This led the court to accept that a failure to refer specifically to the race equality duty under s.71 could not render the decision unlawful provided that it was apparent that the decision maker made clear that he has in substance had due regard to the relevant statutory duty. Equally, to refer to the statutory duty does not of itself show that the duty has been performed.
"30. We had detailed submissions from Mr Allen as to the meaning of section 71(1) and in particular the promotion of equal opportunity limb of section 71(1)(b). I shall summarise his principle submissions briefly, because they were not disputed by Mr Coppel. First, the duty is imposed on a large range of public authorities. This demonstrates its importance as a national tool for securing race equality in the broadest sense. Secondly, promotion of equality of opportunity (and indeed good relations) will be assisted by, but is not the same thing as, the elimination of racial discrimination. Mr Drabble emphasised that his case on behalf of the appellants was not based on an allegation of racial discrimination. Thirdly, the promotion of equality of opportunity is concerned with issues of substantive equality and requires a more penetrating consideration than merely asking whether there has been a breach of the principle of non-discrimination. Fourthly, the duty is to have due regard to the need to promote equality of opportunity (and good relations) between the racial group whose case is under consideration and any other racial groups. The reference to any other racial groups may be no more than a reference to the general settled community. Fifthly, the equality of opportunity is of opportunity in all areas of life in which the person or persons under consideration are, or may not be, at a disadvantage by reason of membership of a particular racial group. In practice, this is likely to include disadvantage in the field of education, housing, healthcare and other social needs.
31. In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the Inspector did not have a duty to promote equality of opportunity between the appellants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.
32. In the context of the present case, the areas of the appellants' lives affected by the inequality of opportunity are of central importance to their well-being, and the extent of the inequality of opportunity is substantial. As is clearly stated at Paragraph 5 of Circular 01/2006, Gypsies and Travellers suffer the worst health and education status of any disadvantaged group in England and there is pressing need to promote equality of opportunity in these areas between Gypsies/Travellers and the general settled community in order to eliminate the problem. Again as recognised by the Circular, an effective way of achieving this is to reduce the number of unauthorised encampments and developments and increase the number of Gypsy and Traveller sites in appropriate locations with planning permission.
33. On the other hand, the fact that the appeal sites are on Green Belt land is a powerful countervailing factor: see paras.3.2 and 3.3 of PPG2. It is common ground that the residential use of all 3 appeal sites is "inappropriate development" within the meaning of Para3.4 of PPG2. Paras. 49, 50 and 71 of the Circular make it clear that PPG2 applies with equal force to applications for planning permission from Gypsies and Travellers.
34. Thus, in discharging the duty to have due regard to the need to promote equality of opportunity in this case, the Inspector was required to take into account the need to promote equality of opportunity for the appellants to have housing which would enable them to have access to education, healthcare and other social needs. But she also had to take into account the powerful countervailing imperative of PPG2. Ultimately, how much weight she gave to the various factors was a matter for her planning judgment."
" [A] person has a disability for the purposes of the Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities."
"The purpose of impact assessment is both to ensure that an authority's decisions and activities do not disadvantage disabled people, and also to identify where they might better promote equality of opportunity, including consideration of where the different parts of the Disability equality duty (such as promoting positive attitudes) might be built into those policies and practices."
No doubt in reaching any decision the body in question must have due regard to those objectives.