Connors v Secretary of State for Communities and Local Government

The claimants sought to quash Secretary of State decisions dismissing appeals against refusals of planning permission for Traveller and Gypsy sites in the Green Belt under section 288 of the Town and Country Planning Act 1990 and, in two cases, sought permission under section 289 to appeal Secretary of State decisions on enforcement notices. The principal legal issues were (i) whether the Ministerial announcement of 1 July 2013 (and subsequent directions to "call in" Traveller appeals in the Green Belt) was unlawful as discriminatory under Article 14 ECHR or in breach of the public sector equality duty in section 149 of the Equality Act 2010, and (ii) whether the individual Secretary of State decisions were unlawful, irrational or incompatible with Article 8 ECHR.

The court held that challenges to the ministerial announcement or to the directions calling in appeals could not properly be pursued in these section 288/289 proceedings (and, where relied on, were in any event brought too late). The statistical material did not establish unlawful differential treatment. On the merits the Secretary of State had identified and weighed the material planning considerations (including the Framework and the Planning Policy for Traveller Sites, the absence of a five year supply of deliverable pitches, the personal circumstances of occupiers and the public interest in protecting Green Belt openness). The Secretary of State's decisions were lawful, involved no breach of Article 8 once a proportionality assessment was properly made, and complied with the public sector equality duty. The section 288 applications were refused; permission to bring s289 appeals in relation to two enforcement decisions was granted but those appeals were dismissed on their merits.

The claimants (five individuals) are Irish Travellers or Romany Gypsies who sought planning permission to station caravans/mobile homes on Green Belt land. The local planning authorities refused or failed to determine the applications and enforcement notices were served in some cases. The claimants appealed to the Secretary of State under section 78 (and section 174 in enforcement cases). The Secretary of State directed that the appeals be determined by him and dismissed all of the appeals. Four claimants also challenged the Secretary of State's announced policy (from 1 July 2013) of giving greater scrutiny to Traveller appeals in the Green Belt and of considering such appeals for recovery.

Relief sought: quashing the Secretary of State's decisions under section 288 T&CPA 1990; and permission under section 289 in two cases to challenge enforcement decisions.

Issues framed by the court:

• whether the July 2013 ministerial announcement or recovery directions were unlawful as discriminatory (Article 14) or in breach of the public sector equality duty (s.149 Equality Act 2010), or otherwise procedurally defective or time-barred for challenge in these proceedings;
• whether the Secretary of State's substantive decisions in each individual appeal were unlawful, irrational or incompatible with Article 8 ECHR and/or involved failure to have regard to unmet need and the lack of a five-year supply of Traveller pitches;
• whether the decision-maker correctly treated Green Belt harm (inappropriateness, loss of openness and any encroachment) as carrying substantial weight and properly carried out the proportionality balancing (including the best interests of children as a primary consideration).

Court's reasoning (concise): the court found jurisdictional and timing obstacles to using section 288/289 processes to challenge the ministerial announcement or the directions in the broad way advanced; the s.288 procedure does not extend to quashing policy announcements and late challenges to directions were inappropriate. The statistical evidence relied upon by the claimants did not prove systemic discriminatory outcomes and there was no comparative data for non-Traveller Green Belt appeals. On the merits the Secretary of State and inspectors had each identified the lawful material considerations (including Framework and PPTS provisions, s.38(6) duty, and the Equality Act duty) and explicitly addressed Article 8 proportionality and the best interests of children. The Secretary of State’s differing evaluations of weight were within lawful planning judgment and not irrational. The Equality Act public sector equality duty was considered by the decision-maker and no breach was established.

The court therefore refused the section 288 applications; it granted permission under section 289 to bring appeals against enforcement decisions in the two cases where that was sought but dismissed those appeals on their merits. The court declined to allow late procedural challenges to the Secretary of State's recovery directions or the July 2013 policy by means of the present statutory routes.

The applications under section 288 of the Town and Country Planning Act 1990 are dismissed. Permission to bring section 289 appeals in respect of the enforcement decisions of Mrs Doran and Mrs Lee was granted but those appeals, when considered, did not establish error and were dismissed. The court held that the Secretary of State lawfully applied planning policy (Framework and Planning Policy for Traveller Sites), lawfully discharged duties under the Equality Act 2010 and carried out an Article 8 proportionality assessment; challenges to the ministerial announcement/directions were either not properly brought by s.288/s.289 or were time-barred and in any event not made out on the evidence.