Ministers lose High Court case over handling of appeals on Travellers pitches

A High Court judge has upheld a legal challenge to the way in which the Communities Secretary and a junior minister approached the conduct of appeals relating to Travellers’ pitches in the Green Belt.

The background to the case of Moore & Anor v Secretary of State for Communities And Local Government [2015] EWHC 44 was Eric Pickles taking steps to recover planning appeals for determination by himself where they related to proposals for pitches, whether occupied by one or more caravans, within the Green Belt.

The High Court judge hearing the case, Mr Justice Gilbart, noted that although at first the Secretary of State did not seek to recover all such appeals, he was doing so from the latter part of 2013, and did so until September 2014, when he reduced the percentage recovered to 75%.

This practice had the effect of causing considerable delay in the hearing and determination of those appeals. A legal challenge was brought because the great majority of such appeals related to pitches used by particular ethnic communities (Romany gypsies and Irish Travellers).

The claimants and the Equality & Human Rights Commission (EHRC), which intervened, contended that the Communities Secretary had acted in breach of the provisions of the Equality Act 2010, in a way which had led to unlawful indirect discrimination contrary to section 19 of the Act, and to a breach of the Public Sector Equality Duty imposed on him by section 149 of the Act.

The EHRC also contended that the Secretary of State had acted contrary to his declared policy on the recovery of jurisdiction of appeals without giving reasons for doing so, or had adopted a policy which was undisclosed and conflicted with his declared policy.

The claimants contended as well that Pickles had:

• acted in breach of Articles 6 and 8 of the European Convention of Human Rights; and
• acted in abuse of power, irrationally and had shown bias towards the claimants on the basis that they were Travellers.

Eric Pickles rejected the claims, arguing that he was entitled to recover the appeals in the way and to the extent that he did, as an exercise of his powers and discretion as Secretary of State.

In his ruling Mr Justice Gilbart said that he was satisfied that the challenges mounted on issues of bias, irrationality and abuse of power had failed.

However, he found that the challenges based on breaches of the Equality Act 2010 and of Article 6 of the European Convention of Human Rights (the right to a fair trial within a reasonable time) had succeeded.

“Both are part of the law of England and Wales,” the judge said. “These are not to be dismissed as technical breaches. Although the issue of unlawful discrimination was put before the Minister by his officials, no attempt was made by the Minister to follow the steps required of him by statute, nor was the regard required of him by s 149 of the Equality Act 2010 had to the matters set out there.”

Mr Justice Gilbart continued: “The Article 6 challenge has succeeded because substantial delays have occurred in dealing with the appeals of Mrs Moore and Ms Coates [the claimants], and with many other cases.

“In the context of delay, Article 6 of the ECHR does no more than encapsulate the long standing principle of the common law that justice should not be unreasonably delayed, as it was and has been here.”

The judge said the claimants were and are entitled to have their appeals determined within a reasonable time. “The delays they have experienced have also affected those who oppose their appeals,” he added.

Mr Justice Gilbart concluded that he should limit the relief granted by the Court to the quashing of the two recoveries.

A spokesperson for the Equality and Human Rights Commission said: “We have a duty to protect everyone from discrimination and ensure that the law is applied fairly, consistently and equally for all.

“We understand the need to be sensitive about Green Belt development but this should not be used to single out individuals for unlawful discrimination. Planning decisions should be taken on the merits of an application, not the characteristics of the applicant.”