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

An unlawful practice in recovering planning appeals does not, without more, invalidate the Secretary of State’s later decisions on the merits. The statutory jurisdiction to determine appeals under the Town and Country Planning Act 1990 remains with the Secretary of State, notwithstanding delegation to an inspector. A recovery direction is a distinct procedural step.

A challenge to a recovery direction must be brought promptly by the appropriate route. A challenge to the validity of a substantive appeal decision falls within the statutory procedure and its strict time limit. A claimant must show that any prior unlawfulness infected the substantive decision.

The policy of giving particular scrutiny to traveller-site appeals in the Green Belt was not inherently discriminatory where its stated approach to unmet need applied equally to traveller sites and conventional housing.

Six Gypsy and Traveller appellants challenged decisions by the Secretary of State dismissing planning and, in some cases, enforcement appeals concerning caravan or mobile-home sites in the Green Belt. Inspectors had recommended permission in each case, but the Secretary of State disagreed.

In the first conjoined appeal, Lewis J had dismissed proceedings under sections 288 and 289 of the Town and Country Planning Act 1990: [2014] EWHC 2358 (Admin). In the second, Cranston J had refused late judicial-review challenges to recovery directions, rejected nullity and revocation arguments, and refused an amendment: [2015] EWHC 3494 (Admin).

The central issues were whether an unlawful recovery practice rendered the substantive decisions unlawful or void, and whether the appellants had an available and effective route to challenge the recovery directions.

1. Both appeals were dismissed. The Secretary of State lawfully determined each statutory appeal on its planning merits. Even if a recovery direction had been unlawful because it followed an unlawful practice, that did not automatically invalidate the later appeal decision.

2. The statutory power to determine appeals under sections 78 and 174 of the Town and Country Planning Act 1990 belongs throughout to the Secretary of State. An inspector determines an appeal as the Secretary of State’s appointed person. Recovery under paragraph 3 of Schedule 6 resumes the Secretary of State’s exercise of that jurisdiction; it does not confer a jurisdiction otherwise absent. The alleged unlawfulness concerned the recovery practice, not the Secretary of State’s jurisdiction or the intrinsic legality of the decisions.

3. A recovery direction may be challenged promptly, ordinarily by judicial review before the substantive appeal is determined. A challenge to the validity of a substantive appeal decision as outside the statutory powers is within section 288 and subject to its six-week limit. A substantive decision may in principle be challenged within time if prior recovery unlawfulness demonstrably contaminated it, such as through bad faith, predetermination or bias. No such contamination was shown.

4. The written ministerial statements did not themselves create unlawful indirect discrimination, breach the public-sector equality duty, or breach articles 6, 8 or 14 of the European Convention. Their policy on unmet need expressly applied to traveller sites and conventional housing. The Secretary of State had considered equality impacts, children’s best interests, accommodation need and the absence of a five-year supply in each individual decision.

5. The late judicial-review challenges in the second appeal were properly refused. The appellants had an effective remedy but did not use it in time. The Secretary of State was functus officio after deciding the appeals: the statutory code provided no power for him to revoke those decisions. Mr Smith’s proposed new nullity ground was both late and legally unsound, so amendment was rightly refused.

• Court of Appeal (Civil Division): Both appeals dismissed: [2017] EWCA Civ 1850.
• Administrative Court, Planning Court: Lewis J dismissed the Connors appellants’ challenges under sections 288 and 289 of the Town and Country Planning Act 1990: [2014] EWHC 2358 (Admin).
• Administrative Court, Planning Court: Cranston J refused the Mulvenna and Smith judicial-review challenges as late, rejected the nullity and revocation arguments, and dismissed Mr Smith’s section 288 challenge: [2015] EWHC 3494 (Admin).