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

The Court of Appeal dismissed the appeals. The court confirmed the statutory scheme for planning appeals (notably sections 78 and 79 and Schedule 6 to the Town and Country Planning Act 1990) allows the Secretary of State to recover and determine appeals and that, where recovery directions are not challenged promptly, appellants cannot later use applications under sections 288 or 289 to attack those recovery decisions after the Secretary of State has determined the substantive appeal. The court held that the written ministerial statements of 1 July 2013 and 17 January 2014 were not in themselves unlawful or inherently discriminatory under section 19 or in breach of the public sector equality duty in section 149 of the Equality Act 2010, and that the Secretary of State’s individual decisions addressing Article 8 and Article 14 Convention issues and the public sector equality duty were lawful.

Key subsidiary findings were that (a) timely judicial review is the proper route to challenge recovery directions before determination, (b) the statutory remedies in Part XII (sections 284, 288 and 289) and the statutory time limits are binding, (c) the existence of Moore and Coates did not automatically render all subsequent Secretary of State determinations nullities, and (d) the court will not normally extend time in planning judicial review claims where delay is lengthy and the substantive appeal has already been determined.

This case comprises two consolidated appeals by Gypsy and Traveller appellants against the Secretary of State’s dismissal of planning appeals and against the refusal of two judges below to grant relief. The appellants alleged that the Secretary of State had unlawfully recovered their appeals for his own determination under a discriminatory policy or practice directed at Traveller sites in the Green Belt, and that his substantive decisions dismissing the appeals were therefore invalid.

The appeals came from two High Court orders: Lewis J. ([2014] EWHC 2358 (Admin)) and Cranston J. ([2015] EWHC 3494 (Admin)), and were heard in the Court of Appeal which considered: (i) whether the recovery policy and its application engaged indirect discrimination under section 19 of the Equality Act 2010 or breached the public sector equality duty in section 149; (ii) whether the Secretary of State’s decisions breached Articles 6, 8 or 14 of the European Convention on Human Rights; (iii) whether the ministerial statements (1 July 2013 and 17 January 2014) or any earlier "policy within a policy" were unlawful; (iv) whether challenges were time-barred and whether time should be extended; and (v) whether any failure or unlawfulness in recovery directions rendered the Secretary of State’s substantive decisions nullities.

The court reviewed the statutory scheme for planning appeals (sections 78, 79, Schedule 6 and the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997), the content and application of the written ministerial statements, and relevant authorities including Moore and Coates. It concluded that the written ministerial statements were not themselves unlawful or discriminatory in their terms, that the Secretary of State properly considered the public sector equality duty and Convention rights in each decision, and that none of the appellants had mounted a timely challenge to recovery directions by judicial review before the appeals were determined. The court held that section 288/289 proceedings are not the appropriate late route to challenge a recovery direction after the Secretary of State has determined the appeal, and that, on the statutory design, an unlawful recovery direction does not automatically render the Secretary of State’s later determination a nullity. The court therefore dismissed the appeals.

Relief sought: quashing of the Secretary of State’s decisions dismissing planning appeals and/or relief against alleged unlawful recovery decisions. Issues framed: equality and discrimination (sections 19 and 149 Equality Act 2010), Convention rights (Articles 6, 8, 14), timeliness and extension of time for judicial review, the legal effect of recovery directions and the doctrine of nullity, and the adequacy of reasons and other public law errors.

Reasoning in brief: the statutory code vests appeal-determination power in the Secretary of State, Schedule 6 contemplates the Secretary of State recovering appeals and revoking recovery directions before determination, section 288/289 provide the exclusive post-determination statutory challenge route subject to strict time limits, and the remedies available (including timely judicial review) were sufficient so that domestic procedural rules did not breach the principle of effectiveness under Convention or EU law. Where recovery directions were not challenged promptly, subsequent reliance on sections 288 or 289 after determination was properly refused by the courts. The nullity argument failed on statutory construction and on the facts because the Secretary of State lawfully exercised the jurisdiction conferred on him in determining the substantive appeals.

Appeals dismissed. The court held that the Secretary of State’s ministerial statements and recovery practice were not, in themselves, unlawful so as to invalidate the subsequent determinations; the appellants had not made timely challenges to recovery directions by judicial review before the appeals were determined and could not use section 288/289 proceedings after the substantive decisions as a backdoor to challenge recoveries; extension of time for late judicial review was refused because delay was excessive; and the statutory scheme means an unlawful recovery direction does not automatically make the Secretary of State’s later determination a nullity where he lawfully exercised the jurisdiction conferred on him.

Appeals to the Court of Appeal from the Administrative Court (Planning Court): Lewis J. [2014] EWHC 2358 (Admin) and Cranston J. [2015] EWHC 3494 (Admin). Related judicial review authorities considered included Moore and Coates v Secretary of State for Communities and Local Government [2015] EWHC 44 (Admin) and Connors v Secretary of State for Communities and Local Government [2015] EWHC 334 (Admin). The Court of Appeal delivered judgment at [2017] EWCA Civ 1850.