Connors & Ors v Secretary of State for Communities and Local Government & Ors

The court considered a renewed application for permission to appeal by Mrs Lee, a Romani gypsy, arising from the refusal of planning permission and the issue of an enforcement notice for the stationing of a mobile home on Green Belt land. The application challenged the Secretary of State's decision which had disagreed with an inspector's recommendation to grant temporary permission and had recovered the appeals for decision by the Secretary of State pursuant to a policy concerning traveller sites in the Green Belt.

The Court of Appeal granted permission to appeal limited to one ground (ground 2(a)): whether the Secretary of State failed adequately to take into account the inspector's finding that refusal of temporary permission would likely lead the family to move to another unauthorised site, "in all likelihood in the Green Belt", and the consequences of such a move for the Green Belt balancing exercise. The court concluded that the appellant had a real prospect of success on that issue.

The court refused permission to amend the grounds to add a new ground (ground 4) challenging the recovery decision under the Equality Act 2010 and Article 6 ECHR, because the proposed challenge was late, had been disavowed below, and could have been pursued earlier by judicial review.

Background and parties: Mrs Jane Lee, a Romani gypsy, lived on the disputed site with family members. Planning permission for the use of Green Belt land to station a mobile home was refused; an enforcement notice followed. Appeals were recovered for determination by the Secretary of State under a policy about traveller sites in the Green Belt. An inspector recommended a temporary three-year permission but the Secretary of State rejected that recommendation, dismissed the planning appeal and largely dismissed the enforcement appeal. Mrs Lee challenged the Secretary of State's substantive decision by way of an application under section 288 of the Town and Country Planning Act 1990 and an appeal under section 289 of that Act, which were heard together before Lewis J. Lewis J dismissed the applications and appeals.

Procedural posture: Permission to appeal was refused below and on paper in this court by Sullivan LJ. Mrs Lee renewed her application before Richards LJ and sought permission to amend the grounds to add a challenge to the recovery decision based on equality and fair hearing grounds.

(i) Nature of relief sought: Permission to appeal against Lewis J's decision (section 288 and section 289 challenges to the Secretary of State's planning and enforcement decisions) and permission to amend the grounds to add a challenge to the recovery decision under the Equality Act 2010 and Article 6 ECHR.

(ii) Issues framed:

• Whether the Secretary of State failed to take into account the inspector's finding that refusal of temporary permission would likely cause the family to move to another unauthorised site "in all likelihood in the Green Belt", and whether that omission undermined the Green Belt harm balancing exercise (ground 2(a)).
• Whether permission should be granted to add a new ground challenging the recovery direction as unlawful under the Equality Act 2010 and Article 6 ECHR in light of Moore & Coates (ground 4).

(iii) Reasoning and outcome: Richards LJ concluded that ground 2(a) raised a real prospect of success because the Secretary of State, unlike the inspector, arguably did not expressly address the particular relevance of the inspector's finding that refusal would probably lead to re-location within the Green Belt; that matter was material to the balancing exercise. Permission to appeal was therefore granted limited to that issue under section 288 (and the related section 289 limb). By contrast, permission to amend to add ground 4 was refused as it was a belated change of tack, had been disavowed at the hearing below, could have been pursued earlier by judicial review, and raised issues inappropriate to introduce late in the appeal.

The court noted procedural options for listing the short substantive appeal and provided directions on composition and time estimate.

Permission to appeal was granted in part: Richards LJ granted permission to appeal limited to ground 2(a) because the appellant had a real prospect of success that the Secretary of State did not adequately address the inspector's finding that refusal would likely lead to occupation of another unauthorised site in the Green Belt, a consideration material to the Green Belt balancing exercise. Permission to amend the grounds to add ground 4 (challenge to the recovery decision under the Equality Act 2010 and Article 6 ECHR) was refused as it was a belated change of case that had been disavowed below and could and should have been pursued earlier by judicial review.

The challenge originated from a decision by the Secretary of State to recover planning and enforcement appeals for determination by the Secretary of State following a policy on traveller sites in the Green Belt. Lewis J (Administrative Court, Queen's Bench Division) heard section 288 and section 289 challenges and dismissed the applications and appeals (judgment handed down July 2014 as recorded in the judgment). Permission to appeal was refused on the papers in this court by Sullivan LJ. Richards LJ heard a renewed oral application and granted permission to appeal limited to ground 2(a), but refused permission to amend to add ground 4. Neutral citation of this appeal: [2015] EWCA Civ 1454.