Smith v Secretary of State for Housing, Communities and Local Government & Anor

QBD Planning Court: Pepperall J, [2021] EWHC 1650 (Admin) 17 June 2021

The claimant, a settled Romany Gypsy, unsuccessfully sought to challenge Department for Communities & Local Government planning policy issued in August 2015 which removed from the definition of “Gypsies and Travellers” those who had permanently ceased to travel by reason of health, education or old age. She also sought to challenge a decision of the inspector appointed by the Secretary of State to dismiss an appeal against the refusal of planning permission, which refusal flowed from the fact that neither Ms Smith nor any member of her family was recognised as a Gypsy under the policy. The claimant argued, inter alia, that the planning definition in the 2015 policy unlawfully discriminated against elderly and disabled Gypsies, relying both on the ECHR and the EqA. Pepperall J accepted that the policy impacted disparately on the elderly and disabled Gypsies, and acknowledged the extreme disadvantage experienced by Gypsies and Travellers in this and other contexts.  He ruled, however, that the policy was  justified taking into account the provision made by the planning system as a whole for the “particular needs of Gypsies and Travellers who have retired from travelling”.

Pepperall J referred at §43 to the “the plethora of material before the court to indicate that Gypsies and Travellers are among the most marginalised and vulnerable communities in the United Kingdom”, at §45 to “evidence of a serious shortage of sites” and at §46 to evidence which showed, albeit in 1991, that “90% of applications for planning permission made by Gypsies were refused whereas some 80% of all applications were granted”. At §49 he referred to the Secretary of State’s recognition in 2015 that he revised definition of “Gypsy and Traveller” would “likely [have] … a specific impact on the elderly, disabled and possibly women (particularly those from single parent families)”, impacting on their “article 8 rights to private and family life, home and correspondence”. At §50 he noted the conclusions in the 2015 analysis that, notwithstanding its impacts, the policy change “me[t] the legitimate policy objective of achieving fairness in the planning system” and it was “important for this Government to implement a fair planning system for all, and that where Gypsies and Travellers have settled permanently, they should be treated no differently to the rest of the settled community for planning purposes. The proposal will also support the Government’s aim of reducing tensions between the Traveller community and the settled community”.

At §§52-53 his Lordship noted 2019 evidence that the 2015 policy “had led to a sharp drop of almost 75% in the provision of pitches” and that “nearly half of those assessed as needing a pitch in the south east fall outside the 2015 [policy] definition of Gypsies and Travellers”.

Pepperall J found at §60 that the claim fell within the ambit of Article 8. At §62 he noted the government’s concession that the policy “disadvantages older and disabled Gypsies” and found that, “subject to the issue of justification, such exclusion is discriminatory on the grounds of age and disability”, though “[b]ut for the fact that the government extended the benefits of the predecessor policies between 2006 and 2015 to retired Gypsies, I do, however, observe that it might have been arguable that a policy addressing the specific land-use needs of those leading a nomadic lifestyle cannot sensibly be tested against the different needs of those seeking a permanent home”. At §66 the Judge cited Stec v. United Kingdom (2006) 43 EHRR 47 §52 to the effect that “As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention” and at §67 he observed that “Likewise, in [JD and A v United Kingdom (Appls 32949/17, 34614/17), [2020] HLR 5 the European Court made plain that ‘very weighty reasons’ would be needed to justify discrimination on the grounds of disabilities or gender”. He also made reference to R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2020] EWCA Civ 542, [2020] 4 All ER 1027 in which Hickinbottom LJ stated at §140 that “The greater the element of economic and/or social policy involved, the greater the margin of judgment and the greater the deference that should be afforded … However, if the measure involves adverse discriminatory effects, that will reduce the margin of judgment and thus the degree of deference. That will be particularly so where the ground of discrimination concerns a core attribute such as sex or race.”

Having accepted at §69 that “very weighty reasons will be needed to justify disability discrimination” Pepperall J adopted the four stage approach to justification set out in Bank Mellat v HM Treasury (No 2) [2013] UKSC 38, [2014] AC 700  §75, per Lord Reed. The claimant having challenged the policy itself rather than its application to her, Pepperall J cited the dicta of Baroness Hale, Lord Reed and Lord Hodge in Christian Institute v. Lord Advocate [2016] UKSC 51 , [2016] ELR 474 §29 that:

“… an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or most cases, the legislation itself will not be incompatible with Convention rights” (citing R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68, [2015] 1 WLR 5055 at §§2 & 60 per Baroness Hale, §69 per Lord Hodge).”

At §§73-77 Pepperall J set out the findings in Wrexham County Borough Council v National Assembly of Wales [2003] EWCA Civ 835 in which the Court of Appeal had tied the special treatment of Gypsies in planning law firmly to their nomadic way of life and rejected the argument that a Gypsy who had retired from a travelling lifestyle could be a Gypsy for the purpose of planning policy, Auld LJ stating at §57 that “[w]hether applicants for planning permission are of a ‘nomadic way of life’ as a matter of planning law and policy is a functional test to be applied to their way of life at the time of the determination…”

Pepperall J observed at §78 that the “Wrexham Case authoritatively dealt with the position under article 8. While the case was not argued on the basis of article 14, the Court of Appeal’s clear conclusions are instructive on three issues:

78.1     First, that the ambit of the then applicable planning policy for Gypsies and Travellers was functional in that it focused on the applicant’s way of life and consequent land-use needs, rather than upon his or her cultural needs.

78.2     Secondly, the rationale for such policy was that a nomadic lifestyle brings with it special needs in that it renders nomads more vulnerable to homelessness if subjected to the normal rigours of planning control.

78.3     Thirdly, that once a Gypsy or Traveller gives up his or her nomadic lifestyle, there is no justification for continuing to apply a more relaxed planning regime provided the planning system continues to respect the applicant’s article 8 rights”.

At §79 he expressed himself “satisfied that … 2015 [policy] retains at its core a functional test of nomadism and that its focus is upon the specific land-use needs of those leading a nomadic lifestyle [and] … continues to recognise the special needs of nomadic people…” And at §80 the Judge concluded that the respondent was “plainly justified in drawing a distinction between the specific land-use needs of those seeking to lead a nomadic lifestyle and those seeking a more settled existence… The critical consideration is that [the] 2015 [policy] does not stand alone. While the policy deals specifically with the housing needs of Gypsies and Travellers who follow a nomadic habit of life, it is part of a patchwork of provisions…”

The decision in Wrexham appears to have prevented this claim being considered as involving race discrimination as well as discrimination related to age and disability. It is unclear whether, had the claim been considered as one involving race discrimination, a different conclusion might have been reached. On the one hand the Judge accepted that “very weighty reasons” were required to justify disability discrimination, which he found to be in issue. As against this, race discrimination tends to attract the highest standard of protection under the ECHR. Even then, the discrimination at issue here is likely to have been of a Thlimmenos (indirect) nature in which the threshold for justification is lower than in cases of direct discrimination so it may not have made any difference on the facts of the case.

Pepperall J went on to consider the claim under the EqA, accepting at §85 that the 2015 policy “puts retired and disabled Gypsies at a particular disadvantage when compared to younger and able-bodied Gypsies respectively but at §87 that it was justified for the reasons relied upon in relation to Article 14 “[p]rovided the planning system as a whole takes into account the particular needs of Gypsies and Travellers who have retired from travelling”.

 

Claimant: Marc Willers QC and Tessa Buchanan, instructed by Deighton Pierce Glynn

Defendant: Tim Mould QC, instructed by Government Legal Department

First Intervener: Chris Buttler

Second Intervener: Tim Jones, instructed by Community Law Partnership

Third Intervener: David Wolfe QC and Owen Greenhall, instructed by Community Law Partnership

Fourth Intervener: Sarah Sackman and Merrow Golden, instructed directly

 

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