Marc Willers QC explores the recent High Court judgment in which it was found that the conduct of Eric Pickles, the Secretary of State for Communities and Local Government, constituted indirect discrimination against Romany Gypsies and Irish Travellers.
Meeting the accommodation needs of Gypsies and Travellers should be relatively simple, but it has always been a contentious political issue because of widespread prejudice amongst the settled population and nimbyism. Planning permission is required for use of land as a caravan site and permission for sites in the Green Belt will only be granted in very special circumstances. Most planning applications for Gypsy and Traveller sites are refused at first instance by local authorities. Appeals can be made to the Secretary of State for Communities and Local Government and a planning inspector is usually appointed to determine such appeals unless they involve significant development in the Green Belt; in such cases an inspector will be appointed to hear the appeal and to report to the Secretary of State with a recommendation on whether or not to grant planning permission.
However, in 2013 Mr Eric Pickles MP, the Secretary of State for Communities and Local Government, decided to recover all planning and enforcement notice appeals involving Gypsy and Traveller sites in the Green Belt for his own determination because of a concern about whether planning inspectors were giving sufficient weight to the need to protect the Green Belt. Those representing Gypsies and Travellers questioned why Mr Pickles had singled out Gypsy and Traveller sites for special scrutiny and in 2014 two Romani Gypsy women, Charmaine Moore and Sarah Coates, instructed Community Law Partnership, a firm of solicitors which has specialised in representing Gypsies and Travellers for many years, to issue judicial review proceedings to challenge Mr Pickles’ decision to recover their planning appeals.
Their claims were heard by Mr Justice Gilbart and he gave judgment on 21st January 2015: see Moore and Coates v Secretary of State for Communities and Local Government and London Borough of Bromley and Dartford Borough Council and Equality and Human Rights Commission  EWHC 44 (Admin). The Judge held that the Secretary of State’s decision to recover all the Gypsy and Traveller appeals was unlawful because it indirectly discriminated against Gypsies and Travellers, it had breached his public sector equality duty and it would delay the decision-making process in breach of Article 6 of the European Convention on Human Rights. As a consequence the Judge quashed Mr Pickles’ decision to recover the two appeals.
However, the judgment has far wider implications. Mr Pickles has determined many Gypsy and Traveller appeals since July 2013 and there are many waiting to be determined. It is clear from the judgment of Gilbart J that Mr Pickles will need to review all of his recovery decisions in cases which have not yet been determined. It is also clear that Mr Pickles should never have recovered the significant number of the planning and enforcement appeals that he has dismissed since July 2013. Those decisions should now be revoked or withdrawn, and fairness would suggest that Mr Pickles ought instead to adopt the recommendation made by his reporting inspectors in those cases; if he fails to do so then Mr Pickles and his Department may be find themselves very busy defending further claims for judicial review issued by Gypsies and Travellers in the weeks and months leading up to the election.
This blog was originally published by Inside Housing on 11 February 2015 under the heading ‘In a Pickle’ – see http://www.insidehousing.co.uk/home/blogs/in-a-pickle/7008086.article.