Lisa Smith v Secretary of State for Levelling Up, Housing and Communities & Ors

The Court of Appeal allowed an appeal from Pepperall J and quashed an inspector’s decision dismissing a planning appeal by Ms Smith. The core legal issues were indirect discrimination under s.19 of the Equality Act 2010 (age, disability and race/ethnicity) and the proportionality of the August 2015 amendment to the Planning Policy for Traveller Sites (PPTS 2015) that excluded those who had permanently ceased travelling because of old age or disability. The court held that the judge below applied an incorrect higher threshold (relying unduly on precedents about abstract challenges to legislation), misapplied the relevant burden of proof, and failed to treat ethnicity/race as a protected characteristic in the pleaded challenge. The Secretary of State had conceded indirect discrimination but did not justify it: the contemporaneous PSED and consultation material did not establish a legitimate aim sufficiently supported by evidence, and the discriminatory effects were not shown to be proportionate. The inspector’s decision was therefore unlawful and was remitted for redetermination.

Background and parties: The appellant, Ms Lisa Smith, and her family occupied a Gypsy caravan site near Coalville under earlier temporary permissions. Her family includes elderly and severely disabled members who cannot travel. After the publication of PPTS 2015 the policy definition of "Gypsies and Travellers" was amended to exclude those who had permanently ceased travelling because of health, education or old age (the "relevant exclusion"). An inspector dismissed an appeal for permanent planning permission in November 2018. Ms Smith sought judicial review under s.288 Town and Country Planning Act 1990 to quash the inspector’s decision.

Nature of the application / relief sought: Quashing of the inspector’s decision dismissing the appeal for permanent planning permission and remission for redetermination.

Procedural posture: Appeal from Pepperall J (High Court, Planning Court) who refused the s.288 challenge: [2021] EWHC 1650 (Admin). Permission to appeal was granted and the matter was argued in the Court of Appeal.

Issues framed by the court:

• Whether the PPTS 2015 amendment indirectly discriminated contrary to the Convention (Articles 8 and 14) and the Equality Act 2010 (s.19), and if so whether it was justified;
• Whether the judge below applied the correct legal test and burden of proof on justification;
• Whether race/ethnicity (Romany Gypsy identity) was a live and relevant protected characteristic;
• Whether the Secretary of State adduced an adequate legitimate aim and proportionate means to justify the exclusion;
• Whether the inspector would have reached the same outcome absent the exclusion (remedy / relief).

Court’s reasoning in brief: The court accepted that the Secretary of State had conceded indirect discrimination. It found error in the judge’s reliance on authorities about abstract, "ab ante" challenges to legislation (e.g. Christian Institute) and in imposing a "high hurdle" on the claimant; once discrimination was admitted the onus lay on the Secretary of State to justify it under the Bank Mellat proportionality framework. The court held that race/ethnicity (Romany Gypsy) was plainly a protected characteristic implicated by the case and should have been treated as such. The contemporaneous PSED and consultation material were analysed and found not to demonstrate that the relevant exclusion pursued a legitimate aim supported by adequate evidence (the asserted aim of "fairness" was insufficiently supported and in tension with admitted adverse impacts). The PSED itself recorded likely harms (loss of planning protection, risk of homelessness and unauthorised camping and a substantial reduction in identified pitch need) and proposed mitigation that was not implemented or kept under review. On balance the court concluded the discriminatory effect outweighed any legitimate objective and the exclusion was not a proportionate means to any established aim. Because the exclusion was an operative factor in the inspector’s decision, the inspector’s decision was quashed and the appeal remitted for redetermination.

Subsidiary findings: The court emphasised that the s.288 claim was confined to quashing the inspector’s decision in Ms Smith’s case and did not itself declare PPTS 2015 unlawful generally; it noted concerns about the practical effect of PPTS 2015 (including an assessed fall in pitch provision) and the absence of a review mechanism.

Appeal allowed. The Court of Appeal held that the judge below erred by imposing an inappropriate high hurdle and reversing the burden of proof on justification, and by failing to treat race/ethnicity as a protected characteristic. On the evidence (PSED and consultation material) the Secretary of State did not show that the August 2015 exclusion of those who had permanently ceased travelling for age or disability pursued a legitimate aim supported by adequate evidence or that it was proportionate. The conceded indirect discrimination (age, disability and race) was not justified; the inspector’s November 2018 decision was unlawful, quashed and remitted for redetermination.

Appeal from Pepperall J in the High Court, King’s Bench Division, Planning Court: [2021] EWHC 1650 (Admin). Permission to appeal was granted to the Court of Appeal (William Davis LJ). The Court of Appeal decision is reported at [2022] EWCA Civ 1391.