Government planning policy on caravan site provision between 2006 and 2015 defined gipsies and travellers as nomadic persons, which included those who no longer travelled “temporarily or permanently” because of their own or their family’s or dependants’ disability or old age. The Secretary of State published a revised policy in August 2015 which removed the reference to permanence in the definition. The revised policy was to be read in conjunction with the National Planning Policy Framework, had to be taken into account during development plan preparation and was a “material consideration” to be taken into account in planning decisions. Since 2011 the claimant Romany gipsy lived with her family in their caravans on rented land over which temporary planning permission had been granted for use as a gipsy caravan site. In 2016 the local planning authority refused the landowner’s application to vary the permission and allow permanent residential use of the land for that purpose. In 2018 the planning inspector (i) refused the claimant’s appeal against that decision on the basis that no member of her family fell within the revised definition of gipsies and travellers so that the application did not benefit from the more permissive planning regime contained in that policy, and (ii) did not grant a further temporary consent. The claimant sought a statutory review under section 288 of the Town and Country Planning Act 1990 on the ground, inter alia, that the 2015 policy was unlawfully discriminatory by contravening article 14 read with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and section 19 of the Equality Act 2010 in that it indirectly discriminated against elderly and disabled gipsies and travellers. The claimant also sought the quashing of the inspector’s decision refusing the claimant’s appeal against the planning authority’s refusal of the planning application. In dismissing the claim, the judge held that (i) while the claim fell within the ambit of article 8, which meant that article 14 required the 2015 policy to operate without discrimination, and that the exclusion of permanently settled gipsies and travellers from the planning benefits of the 2015 policy disadvantaged older and disabled gipsies when compared to younger and able-bodied gipsies and was discriminatory on the grounds of age and disability and therefore required justification to be lawful, (ii) the exclusion of permanently settled gipsies from the policy was objectively and reasonably justified as being rationally connected to and a proportionate means of achieving its objectives of ensuring the fair and equal treatment of gipsies and travellers in a way that facilitated their traditional and nomadic habit of life while also respecting the interests of the settled community with the consequence that the policy did not breach of either the Human Rights Convention or the Equality Act 2010. The key issues for the court on the claimant’s appeal were whether the judge inter alia (i) applied the wrong test and/or reversed the burden of proof, (ii) erred in his reasoning and conclusions as to the legitimate aim or objective of the exclusion, and (iii) erred in his reasoning and conclusions to the effect that the exclusion was proportionate.
On the appeal—
Held, Appeal allowed. A challenge to the proportionality of legislation or policy on theoretical or hypothetical grounds faced a high hurdle because it would usually be impossible for the court to conclude that the legislation or policy was unlawful merely as a result of the words alone. However, the state had a positive obligation to assist an individual who was a member of a particular group in society. What was critical in cases where indirect discrimination was admitted was whether or not it could be justified. It is incorrect to apply a high hurdle to a claimant’s challenge to legislation or policy, notwithstanding an admission of indirect discrimination. On the contrary, the burden was on the Secretary of State to demonstrate the necessary justification in the light of the concession. It was not the law in a claim for indirect discrimination, despite an admission of discrimination, that the claimant had to demonstrate that the measure was wholly incapable of lawful operation. Therefore, a “high hurdle” was not a paraphrase of the applicable flexible approach. Accordingly, the judge had erred in imposing a “high hurdle” burden of proof on the claimant when the onus was on the Secretary of State in the circumstances to make good his case on justification. The acknowledged likely effect of the exclusion was a reduction in the number of gipsies and travellers who could obtain permanent or temporary planning permission and to ensure that those excluded by the new definition would not have the benefit of the policy applicable to those who remained within the definition. There had been no suggestion that that was or could be a legitimate aim in seeking to create fairness as between gipsies and travellers on the one hand and the settled community on the other. The severity of the effect on the rights of aged and disabled gipsies and travellers outweighed the alleged aims or objectives of the policy alteration and were not proportionate. Accordingly, the appropriate course of action was to quash the inspector’s decision and remit the matter to the Secretary of State for redetermination of the claimant’s appeal (paras 48, 49, 51–54, 56, 59, 99, 101, 102, 122, 129, 130, 131, 138).
Marc Willers KC and Tessa Buchanan (instructed by Deighton Pierce Glynn Ltd) for the claimant.
Tim Mould KC (instructed by Treasury Solicitor) for the Secretary of State.
David Wolfe KC, Timothy Jones and Owen Greenhall (instructed by Community Law Partnership) for the interveners, by written submissions only.
The local planning authority and the interested party did not appear and were not represented.