Moore v Secretary of State for Communities and Local Government

The court considered the Secretary of State's practice and ministerial statements (WMS 1 and WMS 2) to recover planning appeals concerning traveller pitches in the Green Belt. Key legal principles applied include the Secretary of State's statutory powers under s 78 and Schedule 6 of the Town and Country Planning Act 1990, the statutory equality framework in the Equality Act 2010 (notably s 19 on indirect discrimination and s 149, the Public Sector Equality Duty), and Article 6 ECHR's requirement for determination within a reasonable time.

The court found that the practical recovery practice in 2013–2014 (in which essentially all traveller-in-Green-Belt appeals were recovered and subjected to lengthy delay) had a disproportionate adverse effect on ethnic Romany Gypsies and Irish Travellers and amounted to unlawful indirect discrimination under s 19 EA 2010. The Secretary of State also failed to comply with the PSED in s 149 by not having due regard to equality implications when adopting and operating that practice.

On Article 6, the court held that the extensive delays caused by the recovery practice meant the claimants' appeals had not been determined within a reasonable time. Claims of bias, abuse of power and irrationality were rejected. The court quashed the decisions to recover the two claimants' appeals but left open the lawful exercise of recovery where s 19 and s 149 are respected and decisions are made on the merits.

This is a judicial review of the Secretary of State for Communities and Local Government's approach to recovering planning appeals concerning traveller pitches located in the Green Belt.

• Background and parties: Two claimants, Romany Gypsies who had appeals about pitches in the Green Belt (Mrs Moore and Ms Coates), challenged the Secretary of State's recovery practice. The Equality and Human Rights Commission intervened. The Secretary of State had published written ministerial statements (WMS 1, 1 July 2013 and WMS 2, 17 January 2014) indicating a revised recovery approach for traveller sites in the Green Belt; in practice a very large proportion (effectively 100% for a period) of such appeals were recovered, with substantial delay in decision-making.
• Nature of the application: Relief sought included quashing of the recovery decisions and declarations that the recovery practice breached the Equality Act 2010 (s 19 indirect discrimination; s 149 PSED), breached Article 6 and Article 8 ECHR (delay and independence/impartiality), and was unlawful as an undisclosed policy or as an abuse of power.
• Issues framed: (i) Whether the recovery practice amounted to indirect discrimination under s 19 EA 2010 and/or breached the PSED in s 149; (ii) whether Article 6 and Article 8 ECHR were breached because of lack of independent tribunal or unreasonable delay; (iii) whether there was bias, irrationality or an unlawful undisclosed policy.
• Court’s reasoning and findings: The judge analysed the planning appeal framework (s 78 and Schedule 6 TCPA 1990), the content of WMS 1 and WMS 2, the Planning Policy for Traveller Sites and NPPF, and contemporaneous departmental material. The court found (a) the recovery practice placed ethnic Romany Gypsies and Irish Travellers at a particular disadvantage because their appeals were subject to far greater recovery and delay than other Green Belt residential proposals; (b) the Secretary of State did not demonstrate that the blanket or high-percentage recovery practice was a proportionate means to achieve the legitimate aim of securing correct application of national policy; (c) there was an absence of proper PSED consideration and evidence of due regard in ministerial decision-making; (d) the delays arising from recovery were excessive so that the claimants' appeals had not been determined within a reasonable time under Article 6; (e) allegations of bias, irrationality and abuse of power failed.
• Remedy and practical outcome: The court quashed the decisions to recover the two claimants' appeals. The judgment emphasises that recovery of appeals remains lawful in principle but must be exercised consistently with the Equality Act duties and without arbitrary blanket practice causing disproportionate disadvantage and delay.

The court allowed the judicial review in part. It held that the Secretary of State's practical practice of recovering essentially all traveller-in-Green-Belt appeals (and later an arbitrary high percentage) was unlawful because it resulted in unlawful indirect discrimination contrary to s 19 Equality Act 2010 and breached the Public Sector Equality Duty in s 149 by failing to have due regard to equality impacts. The court also held that the significant delays produced by that recovery practice meant the claimants' appeals were not determined within a reasonable time under Article 6 ECHR. Claims of bias, abuse of power and irrationality were dismissed. The court quashed the two recovery decisions but recognised the Secretary of State may lawfully recover appeals if done compatibly with the statutory equality duties and on proper merits.