Simmons v Mole Valley District Council

Permission to appeal requires a realistic prospect of success or another compelling reason. In a discrimination claim concerning planning decisions, the essential question is whether the evidence establishes discrimination at all. If no discrimination is shown, it is unnecessary for the lower court to analyse separately every statutory form of discrimination relied upon.

Comparator decisions must be assessed on their own facts. Independent expert evidence that planning decisions were justified, together with unchallenged evidence from the council and the absence of a factual foundation for discrimination, may defeat an application for permission. Alleged errors in expert evidence will not justify permission unless they could realistically affect the result.

Roger Simmons claimed that Mole Valley District Council had discriminated against him in its handling of planning applications relating to his Surrey land and listed barn. He relied on comparisons with neighbouring planning decisions, alleged failures concerning notice, disclosure and environmental matters, and various provisions of the Race Relations Act 1976.

After a hearing before His Honour Judge Callman, sitting with two race relations assessors, the claim failed because no discrimination was established. Mr Simmons applied to the Court of Appeal for permission to appeal, alleging that grounds and evidence had been overlooked, discovery had been mishandled, the claim had been wrongly limited, and the expert evidence was untruthful. The central issue was whether there was any realistic prospect of showing that the lower court had erred.

1. Application dismissed. Lord Justice Rix refused permission to appeal because there was no realistic prospect of success and no other compelling reason to grant permission.
2. The essential issue was whether the evidence disclosed discrimination of any kind. Since the lower court found no discrimination, the fact that its judgment concentrated on section 1 of the Race Relations Act 1976, rather than expressly addressing every other provision relied upon, did not provide a valid ground of appeal.
3. The evidence supported the lower court’s factual conclusion. Professor Crow’s independent assessment was that, apart from one or two criticisms, the council’s decisions were properly made and justified. Mr Robertson’s evidence was unchallenged. The comparator decisions, whether permissions had been refused or granted, were explicable by their individual facts. The planning presumptions, the failure to pursue any application on appeal or at further inquiry, and the assistance provided by the two assessors supported the conclusion that no case of discrimination had been made out.
4. The alleged deficiencies in Professor Crow’s evidence, including his treatment of environmental assessment and the curtilage issue, were at most inaccuracies. They did not provide a realistic prospect that the result would change. The discovery complaint also failed: the judge had treated the original request as a fishing application and the subsequent request had not been pursued as a distinct matter.
5. The argument concerning the meaning of “curtilage” under section 1(5) of the Planning (Listed Buildings and Conversation Areas) Act 1990 was irrelevant because the neighbour’s planning application for the barn did not concern the ancillary buildings. Section 66(1) required special regard to the listed building and its setting, but there was no real basis for concluding that the council had ignored that requirement or that a different outcome would have followed.

• Court of Appeal (Civil Division): On 8 October 2001, Lord Justice Rix dismissed the application for permission to appeal from the decision of His Honour Judge Callman in the Central London County Court.