Moore & Anor v Secretary of State for Communities And Local Government

A policy or practice of recovering all, or an arbitrary proportion, of planning appeals concerning traveller sites in the Green Belt may amount to indirect race discrimination where it causes substantial delay to appeals brought disproportionately by ethnic Gypsies and Travellers. The decision-maker must show that the practice is a proportionate means of achieving a legitimate aim.

The public sector equality duty requires actual, structured and continuing consideration of equality impacts before adopting or changing such a practice. A published recovery policy must be applied consistently, or departure must be justified. Recovery of individual appeals on their merits, or recovery of a properly selected number of appeals after lawful equality consideration, is not necessarily unlawful.

The claimants, both Romany Gypsies with children and health-related personal circumstances, challenged the Secretary of State’s recovery of their planning appeals concerning traveller pitches in the Green Belt. One appeal concerned a private one-pitch site in Bromley; the other concerned a temporary one-pitch site in Dartford.

The appeals had been recovered under Written Ministerial Statements concerning traveller sites in the Green Belt. In practice, all such appeals were recovered for a period, causing substantial delay compared with ordinary planning appeals. The claimants and the Equality and Human Rights Commission alleged indirect discrimination under section 19 of the Equality Act 2010, breach of the public sector equality duty under section 149, breach of article 6 of the Convention, and various common-law errors.

1. Indirect discrimination. The practice of recovering all traveller-site appeals in the Green Belt was a provision, criterion or practice within section 19 of the Equality Act 2010. The appropriate comparison was with persons seeking to establish a habitation in the Green Belt, including those proposing houses or residential conversions. Ethnic Gypsies and Travellers were particularly affected because the category of recovered appeals was closely associated with their ethnic group. The delay caused by recovery was a disadvantage.
2. Proportionality. Giving a clear national steer on the application of Green Belt policy could constitute a legitimate aim. The applicable proportionality inquiry required consideration of whether the aim was sufficiently important, whether the measure was rationally connected to it, and whether less intrusive means were available. Selective recovery of representative appeals, or a further policy statement, could have achieved the same aim with less discriminatory impact. The Secretary of State gave no adequate evidence explaining why recovery of all appeals, or later an arbitrary 75 per cent, was necessary.
3. Equality duty. The duty under section 149 was procedural but substantial. It required actual consideration of the effect on ethnic Gypsies and Travellers, including the effect of delay, before and during adoption of the recovery practice. The previous equality assessment of the substantive traveller-sites policy did not discharge the separate duty arising when the appeal-recovery practice was changed. The evidence showed no proper consideration of the statutory criteria.
4. Convention rights and other grounds. Recovery by the Secretary of State was compatible in principle with article 6 because R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions had established that judicial review provided sufficient control over planning decisions involving policy and expediency. However, the delays in these cases were unreasonable and breached the article 6 requirement for determination within a reasonable time. The claims based on bias, abuse of power and irrationality failed. Article 8 added context but did not require a separate conclusion.
5. Published policy and relief. The practice from September 2013 to January 2014 conflicted with WMS 1, which stated that not all appeals would be recovered. The later undisclosed practice was not itself unlawful on the particular recovery dates because WMS 2 did not expressly preclude recovery of all appeals. The two recovery decisions were quashed. The court did not prohibit lawful recovery of individual appeals or a properly justified selection of appeals.

First-instance judicial review proceedings. The judgment itself records earlier litigation concerning one claimant’s planning appeal, including the Court of Appeal decision in Moore v Secretary of State for Communities and Local Government, [2013] EWCA Civ 1194 , but that decision concerned the same litigation and is not a separate appellate stage of these claims.