Moore & Anor v Secretary of State for Communities And Local Government [2015] EWHC 44 (Admin)

"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."

“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”

“ 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.”

“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 [15]. 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 [18]. 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 [18]. 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.”

“ 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.”

“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.”

“this is an appeal involving a Traveller site in the green belt”